How the Proposed Changes to Section 1557 Affect Individuals with Limited English proficiency (LEP)

How the Proposed Changes to Section 1557 Affect Individuals with Limited English proficiency (LEP)

Millions of people in the United States speak a language other than English and those with limited English proficiency (LEP) often face discrimination in health care. This blog, adapted from our Section 1557 Q&A issue brief, explores some of the ways people with limited English proficiency experience discrimination in health care settings, and provides information on how the Biden administration’s proposed changes to Section 1557 of the Affordable Care Act would help ameliorate those inequities. 

Over 66 million people in the U.S. speak a language other than English at home and over 26 million households are limited English proficient. Language-related barriers may severely limit an individual’s opportunity to access health care, assess options, express choices, and ask questions or seek assistance. 

As one recent example, the LEP population – in particular Spanish speakers and speakers of Asian and Pacific Island languages – are among the least likely to be vaccinated, and have suffered disproportionate rates of COVID-19 infections and deaths. Further, older adults who did not grow up in the United States are likely to face discrimination because they are more likely to have limited English proficiency, different mannerisms, or dress in comparison to their younger peers.

The Biden administration’s proposed changes to Section 1557 regulations (2022 Proposed Rule) requires covered entities to take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible or likely to be served. The 2022 Proposed Rule reinstates provisions from the 2016 Final Regulations regarding definitions for language assistance services, limited English proficient individual, qualified interpreter, qualified translator, qualified bilingual/multilingual staff, and adds a definition of “machine translation”.

It also restores a number of the provisions stripped by the Trump admin including: a requirement to take reasonable steps to provide meaningful access to each LEP individual; standards for video remote interpreting; and notices to inform individuals of their rights.

The 2022 Proposed Rule adds a requirement that a qualified human translator must review machine translation if an entity uses machine translation for text that is critical to the:

  • rights, benefits, or meaningful access of a limited English proficient individual;
  • when accuracy is essential; or
  • when the source documents or materials contain complex, non-literal or technical language.

The Proposed Rule also reinstates requirements to notify LEP individuals of the availability of language services. The 2016 Final Regulations included requirements for “taglines” on significant documents. The Proposed Rule reinstated notification requirements albeit with a new name and some changed parameters. First, the name is now “notice of availability of language assistance services and auxiliary aids and services” to cover notice to both LEP individuals and people with disabilities. The notice must be provided in English and the top 15 languages in the state.This notice must be provided annually, upon request, at a conspicuous location on the entity’s website, and in a clear and prominent physical location. Additionally, the notice must appear in certain electronic and written communications including:

  • notice of nondiscrimination;
  • notice of privacy practices;
  • application and intake forms;
  • notices of denial or termination of eligibility, benefits or services (including Explanation of Benefits) and notices of appeal and grievances rights;
  • communications related to a person’s rights, eligibility, benefits or services that require or request a response;
  • communication related to a public health emergency;
  • consent forms and certain instructions;
  • discharge papers;
  • complaint forms; and
  • patient and member handbooks.

The Biden Administration has proposed changes that would strengthen Sec. 1557 protections and is accepting public comments through October 3, 2022. 

Here are some additional resources that might be useful: 

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