The following comments are in response to clarifications to Section 1557 of the Affordable Care Act. As a member of the National Partnership for Action, and as an advocate for the Deaf and Hard of Hearing community, I have followed the implementation of the ACA very carefully as it has expanded the protections provided to ensure non-discrimination for all patients. I commend HHS for their current actions to clarify the protections based on sex identity and the further guidance regarding the Limited-English proficient population and the Deaf and Hard of Hearing community. The clarifications proposed will advance the understanding of what is expected of entities that access federal funding for healthcare programs.
The proposed rule will require covered entities to post taglines in the top 15 languages spoken by patients and OCR will provide a sample notice and translate it into those 15 languages. This is an excellent step forward to improve compliance overall and I applaud OCR on this effort for standardization of notices. However, since Deaf and Hard of Hearing patients that utilize American Sign Language (ASL) make up a population estimated at over 2 million, I request that covered entities also be required to provide the same notice in ASL. OCR, in turn, could provide covered entities with an ASL (video clip) version of the notice that explains the availability of assistance in ASL. This would go a long way to address the needs of this large patient population.
With these HHS/OCR rules, there is an implicit expectation of compliance. The four factor analysis called for in the clarification is a long standing and effective means in identifying compliance requirements. However, it has been my experience that a number of factors result in healthcare providers either struggling to achieve adequate compliance, being at a loss as to how to achieve compliance in a cost-effective manner, or just not providing adequate access to services to their patients. As such, the enforcement of those rules is an even more important step.
Compliance must be achieved through vigorous enforcement. While there are many well-meaning healthcare providers who strive for compliance, there are others that simply refuse to provide needed services due to the costs involved or they provide services that are not adequate to meet the needs of patients – such as using untrained individuals. These patients are not being provided “meaningful access” to services and action should be taken against these providers. Additional actions could include educational efforts by HHS to inform providers of cost-effective and compliant approaches to providing needed services. For example, some providers do not use video interpreters and over-the-phone interpreters due to a fear that these modalities might not meet HHS expectations.
One of the troubling aspects of compliance is determining responsibility for providing and paying for the services needed. Healthcare entities that accept federal funding are required to provide “meaningful access” to language services and services to the Deaf and Hard of Hearing. However, many services are provided on behalf of insurance plans that have contracts in place with both HHS and their first tier, downstream, and related entities (FDRs) for the actual provision of services. While all contracts provide provisions that the contractors must remain in compliance with federal and state laws, they do not usually articulate the terms of payment for what some see as these “extra” services such as non-English language and sign language interpreters. Insurance plans typically address this by saying these services are included in the negotiated rates, while providers seek additional reimbursement for these services. In reviewing OCR enforcement actions, it shows that enforcement is typically taken against healthcare providers rather than the insurance plans that sponsor the services. If the patients impacted are covered individuals, the insurance plans are equally responsible for not providing these services and should be cited for their non-compliance. Specific identification of HHS expectations on addressing the provision and reimbursement of language services could be included in contracts between HHS and their contractors in the contract documents and guidance that HHS provides to insurance contractors on how to address these services within their contracts with FDRs.
In conclusion, I would like to congratulate HHS on the work done to clarify Section 1557 of the ACA and offer my services to assist HHS in providing further clarifications on non-discrimination in healthcare programs and activities by addressing educational efforts to healthcare providers on cost-effective means of providing language services and assisting HHS by reviewing contractual documents to further clarify compliance expectations.
National Partnership for Action