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OCHC Recommends Strengthened Non-Discrimination Rules Including Disability and Language Access Provisions

New rules are under discussion that will make sure that anti-discrimination protections are applied to all health programs and facilities receiving federal funds. Ohio Consumers for Health Coverage is working to ensure that the rules fully protect Ohioans against discrimination so that health care is accessible to everyone, regardless of background or situation. These rules, proposed by US Secretary of Health and Human Services (HHS) Sylvia Burwell, implement the non-discrimination section (1557) of the Affordable Care Act and prohibit any health program or facility that receives federal funds, including insurance companies in the state and federal marketplace, from discriminating on the basis of race, color, national origin, age, disability, or sex.

In a previous newsletter, we told you about the rules that applied to gender non-discrimination. Here is what the comments we submitted to HHS said about the proposed rules on disability and language access. To read all of our comments on the rules, including those on gender, click here.

Language Access

The rules require programs covered by the rules to:

1)      post an English-language notice of consumers’ rights to free, appropriately tailored language assistance services; and to

2)      post taglines in the top 15 languages spoken nationally by people with limited English proficiency.

To help programs meet this burden, HHS proposed to provide translated versions of the required notice and taglines in the top 15 languages. Along with our partner Community Catalyst, we urged that the term “qualified interpreter” should require interpreters to meet both competency and ethical standards. We also recommended that HHS require that interpreters have knowledge of specialized terminology and concepts.

We applauded HHS for taking steps to ease translation burdens for covered programs by providing notices in the top 15 languages used nationally, but we noted that this really would not meet the needs of many of Ohio’s immigrant communities. The top 15 languages in the U.S. are Spanish, Chinese, Vietnamese, Korean, Tagalog, Russian, Arabic, French Creole, French, Portuguese, Polish, Japanese, Italian, German, and Persian (Farsi). These 15 languages exclude most of the languages spoken by African immigrants in Ohio, including those from Ethiopia, Sudan, Gambia, Congo, Senegal, and Sierra Leone. They also exclude sizeable Ohio Asian populations including India, the Philippines, Nepal and Burma.

We recommend HHS strengthen the regulation by:

  • requiring that sample notices by HHS and tagline translation requirements include the top 15 languages in the state, rather than the proposal to only include the top 15 languages nationally.
  • requiring covered programs to post one or more of their notices in the most prevalent non-English languages frequently encountered in their state or service area.
  • requiring covered programs to translate vital documents for each language group that makes up 5 percent or 1,000 persons, whichever is less, of the population eligible to be served, or likely to be affected by the program, in the service area.

Disability Issues

The proposed rule requires effective and accessible communication for individuals with disabilities, including requirements for websites and electronic and information technology to be accessible. Along with Community Catalyst, we urged HHS to strengthen these protections as well as explicitly cover individuals with health conditions who have historically been the victims of some of the worst forms of discrimination in health care.

Also, because disability does not occur uniformly among racial and ethnic groups, we recommended that cultural competency standards, such as the CLAS (Culturally and Linguistically Appropriate Services) standards, be applied to programs serving people with disabilities. We urged a broader definition of disability as contained in the Americans with Disabilities Act (ADA).

Other materials on the 1557 rules can be found here:

Fact Sheet: Nondiscrimination in Health Programs and Activities Proposed Rule Section 1557 of the Affordable Care Act

Summary of HHS’s Proposed Rule on Nondiscrimination in Health Programs and Activities