Following on our last blog about language trends, we would like to share an example of what’s going on in the language industry regarding language access. The Association of Language Companies recently announced that the US Department of Health and Human Services has proposed a new rule to improve language access in healthcare settings. This rule would give strength to Section 1557 of the Affordable Care Act (ACA), which is a nondiscrimination clause concerning individuals receiving aid or service from a federally funded institution.

So what is 1557?

Section 1557 of the ACA “prohibits discrimination on the grounds of race, color, national origin, sex, age, or disability in certain health programs and activities.” The term “national origin” is understood to include providing language services for those with limited English proficiency (LEP).

Section 1557 was first put into place in 2010, and had a few issues with it. For example, the then-legal standard was for “competent” interpreters to assist LEP individuals; this could allow a loophole for family members or even non-adult family members, or bilingual/multilingual staff at the agency to provide interpretation. Without proper, certified medical interpreters, there may have been many miscommunications, to say the least.

Major Revisions

The Obama administration’s revisions took effect in 2016. Under this revision, some changes were that “competent” interpreters were changed to “qualified” interpreters; minors and family members were only allowed to interpret under special circumstances such as emergencies; and bilingual/multilingual staff were held back from interpreting unless they were able to sufficiently demonstrate proper interpretation abilities. Translation of written materials was also required.

Many things changed in 2020 due to the Trump administration, however. For example, the wording was changed to have a more general requirement of language services to LEP people, rather than each and every LEP person. Federally funded organizations had to undergo a test to determine how to provide language services; the Trump administration changed this again to be more based on the “likelihood” of servicing an LEP individual rather than each specific instance of servicing an LEP individual. Standards of remote video interpretation were also removed, focusing instead on telephonic interpretation only.

Finally, citing too many expenses (presumably for translation fees, extra paper space, and ink), there was also a change to not require that each state have the top fifteen languages represented in a tagline on a non-discrimination notice. Taglines are short statements written in non-English languages that notify the reader that they can access language services free of charge.

Proposed Revision

As mentioned previously, the US Department of Health and Human Services has released a proposed rule to reverse the changes implemented by the Trump administration and to strengthen language access in general compared to the rulings from the Obama administration. Some proposed changes include the following:

Previously removed definitions will be added back for the following terms: language assistance services, limited English proficient individual, qualified interpreter, qualified translator, and qualified bilingual/multilingual staff. Care will also be taken to provide each LEP individual with language access, as well as those who need assistance such as sign language; this will be aided by the requirement of taglines on a large number of documents.

Other changes include the restoration of standards for remote video interpreting, the requirement to take reasonable steps to provide meaningful access to each LEP individual, the requirement to inform individuals of their rights, and the requirement to have a specific employee be responsible to coordinate compliance with 1557. Another change would be applying Section 1557 to Medicare Part B, which notably has not had requirements for Section 1557 despite being federally funded through trust funds.

Our Conclusion

These proposed new rules seem to be taking a huge step toward fair access to language services. Especially exciting is the requirement returning to provide each LEP individual with language access, rather than a general estimate of people. We at Monterey Language Services believe that everyone deserves the right to access to information and services in the language of their choosing, and we’re all for the proposed rules and hope they come to pass sooner than later.