Affordable Care Act Section 1557 prohibits several types of discrimination: race, color, language, national origin, disability, sex, sexual orientation, sex stereotyping, sexual identity, and age. As the most comprehensive federal health care civil rights law in American history, the Section 1557 regulations incorporate and encompass the laws, regulations, guidance, directives, and jurisprudence of six different federal statutes:
- Americans with Disabilities Act (ADA);
- Rehabilitation Act of 1973;
- Title VI of the Civil Rights Act of 1964;
- Title VII of the Civil Rights Act of 1964;
- Title IX of the Educational Amendments of 1972; and
- Age Discrimination Act of 1975
One of the hallmarks of federal civil rights requirements is notice, notice to protected categories of people about their right not to be discriminated against and their remedies in case their rights are violated. Section 1557 dramatically embraces the importance of notice in the Section’s 15 languages translation requirement.
Section 1557 Tagline Requirements
Section 1557 mandates the creation and posting of “taglines” to notify people of their right to free language assistance. As defined by the new regulations, taglines are “… short statements written in non-English languages that indicate the availability of language assistance services free of charge” (§92.4). The regulations also provide a tagline example in multiple languages:
“ATTENTION: If you speak [insert language], language assistance services, free of charge, are available to you. Call 1-xxx-xxx-xxxx (TTY: 1-xxx-xxx-xxxx).” Appendix B to Part 92
By analyzing U.S. Census data, the U.S. Department of Health & Human Services (HHS) compiled the top 15 non-English languages spoken by Limited English Proficient (LEP) people in each state, the District of Columbia, and U.S. territories. Although HHS does not require health care organizations to use its data, such use is certainly advisable to simplify the task of determining each jurisdiction’s top 15 applicable languages.
Examining HHS’s list is very instructive. While Spanish abounds as the number one non-English language spoken in the vast majority of U.S. jurisdictions, Spanish does not have an exclusive hold on first place.
Alaska’s top non-English language is Tagalog. Ilocano is number one in Hawaii. French tops the list in Vermont, Maine, and the U.S. Virgin Islands, which also feature French Creole. Chamorro and Chinese are number one on Guam.
How Taglines Should Appear
The taglines must be posted in a conspicuously-visible font size “In significant publications and significant communications targeted to beneficiaries, enrollees, applicants, and members of the public, (ii) In conspicuous physical locations where the entity interacts with the public; and (iii) In a conspicuous location on the covered entity’s Web site accessible from the home page of the covered entity’s Web site“ (§ 92.8 (f)(1)).
The regulations’ definition of such “significant publications” is broad. Clearly, HHS intends the tagline requirement to apply to myriad documents, materials, and communications. AS HHS states in the regulations’ comments: “We intend the scope of significant publications and significant communications to include not only documents intended for the public, such as outreach, education, and marketing materials, but also written notices requiring a response from an individual and written notices to an individual, such as those pertaining to rights or benefits. “
The taglines and top 15 languages requirements are just part of what the new regulations obligate health care providers do to provide language access and assistance to LEP people.
Indeed, as HHS admonishes, tagline publication “… does not fulfill the [provider’s] obligation for complying with the prohibition of national origin discrimination under Section 1557 and the rule.
Additional Obligation Beyond the Tagline Requirement
Under § 92.201(a), covered entities must also take reasonable steps to provide meaningful access to each individual with LEP eligible to be served or likely to be encountered in the entity’s health programs or activities. Independent of the tagline requirement at§92.8(d)(1)-(2), covered entities are responsible for providing timely and accurate language assistance services, such as oral interpretation and written translation, in non-English languages, even if the language is not shown on OCR’s list, when doing so is a reasonable step to provide meaningful access to an individual with LEP.”
Section 1557 continues to reveal many new requirements, legal changes, and points of interest, including of course, taglines, and the top 15 languages by jurisdiction. Health care organizations are encouraged to understand their new legal obligations and take all steps necessary for compliance as they await the onset of HHS legal enforcement of Section 1557.
Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.