Regardless of your views of the Patient Protection Affordable Care Act (often referred to as ACA or more controversially as “Obamacare”), it was passed and is currently in the process of being implemented. Since the Affordable Care Act was intended to cover all uninsured Americans, this law will dramatically increase the number of limited English proficiency (LEP) patients who have insurance. This in turn will greatly increase the need for language services in all areas of healthcare.
Along with the ACA rollout, come new provisions for LEP patients. These provisions include providing translations and interpreting services to LEP patients to increase healthcare access for all.
The LEP population in the United States is not a small one. According to the 2011 American Community Survey Report, more than 60 million (21% of the US population) people speak a language other than English at home. Additionally, more than 25 million or (9%) can be considered LEP and speak English “less than very well” by their own admission. It is estimated that 8.5 million children under 19 years live with at least one LEP parent.
The Kaiser Family Foundation in its Profile Of Health Insurance Exchange Enrollees has said that of the 24 million Americans expected to buy private health insurance, they expect 23% of all Health Insurance Exchange applicants to speak a language other than English at home.
The ACA will multiply the number limited English proficiency individuals that have insurance and that use the healthcare system. Many provisions have been created Federally to enable LEP patients to have full access to our healthcare system.
What Are The Affordable Care Act Language Requirements?
There are many federal regulations that mandate language services for limited English proficiency patients. The ACA extends previous mandates and explicitly requires insurers and healthcare institutions to provide written translation and interpreting services for limited English proficiency individuals of qualifying language groups. Below are the Federal laws requiring language services for LEP individuals.
Title VI of the Civil Rights Act of 1964
Under Title VI, LEP patients are protected from discrimination against national origin. Title VI 42 U.S.C. § 2000d states:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The Title VI provision includes discrimination based on national origin. It has been ruled that discrimination on basis of national origin includes exclusion due to lack of language access. Title VI protection covers all healthcare institutions and programs receiving Federal aid (such as Medicaid, Medicare). Title VI covers all Health Insurance plans set up under the Affordable Care Act, and thus mandates providing language services.
Executive Order 13166
On August 11, 2000, President Bill Clinton signed Executive Order 13166, which requires federal agencies to examine the services they provide, identify any need for services for those with limited English proficiency and to develop and implement a system to provide those services so LEP persons can have meaningful access.
The key to this Executive Order is that recipients of Federal funding must take “reasonable steps to ensure meaningful access.” The two main areas of Executive Order 13166 are:
- Develop and implement a system to provide LEP individuals with meaningful access to agency services
- Agencies that provide Federal financial assistance must issue guidance to all recipients of Federal funding on their legal obligation to provide meaningful access to LEP individuals under Title VI of the Civil Rights Act of 1964 and how to implement these regulations.
On February 17, 2011, US Attorney General Eric Holder issued a memorandum that reaffirmed Executive Order 13166’s mandate and renewed the Federal government’s commitment to language access.
Non-Discrimination Requirement—Affordable Care Act Section 1557
Section 1557 of the Affordable Care Act builds on both Title VI and Executive Order 13166 and furthers protection from discrimination by including any health program or activity that any part of which receives Federal financial assistance including credit, subsidies and contracts of insurance. Section 1557 also extends non-discrimination protection to the Health Insurance Exchanges (as well as any other entity or Executive agency that administers a program or activity established under Title 1 of the ACA).
Plain Language Requirement—Affordable Care Act Section 1331
The ACA explicitly states that patient communication must be given in “plain language.” Following Section 1331 of the Patient Protection Affordable Care Act, all information that must be submitted must be provided in plain language. Section 1331 states:
The term ‘‘plain language’’ means language that the intended audience, including individuals with limited English proficiency, can readily understand and use because that language is concise, well-organized, and follows other best practices of plain language writing.”
Under this provision, patient communications must be clear, concise and easy to understand. For speakers of other languages such communication may only be understandable when translated or interpreted into their native languages.
Culturally And Linguistically Appropriate Requirement—Affordable Care Act Section 1001
Section1001 of the Affordable Care Act mandates that health insurance companies and group health plans use language that is linguistically and culturally appropriate when communicating with insurance enrollees. In order to make insurance more comprehendible for all, Section 1001 states that language used must be understandable by the “average plan enrollee.” Section 1001 states:
The standards shall ensure that the summary is presented in a culturally and linguistically appropriate manner and utilizes terminology understandable by the average plan enrollee.”
Understandable and linguistically and culturally appropriate is the standard required by Section 1001 for the mandated Summary of Benefits and Coverage and to give notice to enrollees of the appeals processes and of the support available through the Insurance Ombudsman or Commissioner.
Consumer Assistance Accessibility—DHHS Regulation 45 CFR § 155.205(c)
The Department of Health and Human Services is responsible for the regulations and standards associated with the Affordable Care Act and related Health Insurance Exchanges. 45 CFR § 155.205(c) sets up accessibility requirements for Health Exchanges for LEP patients. Specifically, Exchanges must provide oral interpretation, written translation and “tag lines” informing individuals of the availability of translation and interpreting services. 45 CFR § 155.205(c) states:
(c) Accessibility. Information must be provided to applicants and enrollees in plain language and in a manner that is accessible and timely to—
(2) Individuals who are limited English proficient through the provision of language services at no cost to the individual, including
(i) Oral interpretation;
(ii) Written translations; and
(iii) Taglines in non-English languages indicating the availability of language services.”
What is the Threshold For Providing Language Services Under ACA?
The threshold to provide translation and interpreting for LEP patients is more than 10% of non-English speaking individuals in a county. However, those LEP individuals must belong to the same language group.
The actual language states, “10 percent or more of the population living in the consumer’s country are literate only in the same non-English language.”
Using this established threshold, insurers and healthcare providers can calculate if they must provide language services, and for which languages. This threshold is estimated to affect 23 states and 255 counties nationwide.
What Documents Must Be Translated?
The Affordable Care Act explicitly requires translation of specific documents, including the Summary of Benefits and Coverage (SBC) and the Uniform Glossary. However, translating other documents may be implied, for example provision of claim and appeal notices most likely must be translated since they are to be presented in a linguistically and culturally appropriate manner. The provision of these documents in plain and translated languages applies to all insurance plans, whether they are bought through an employer or privately.
SBC (Summary of Benefits and Coverage)
The Affordable Care Act mandates that all health insurers and group health plans provide a Summary of Benefits and Coverage (SBC) to all clients and consumers.
The US Government has designed a template for insurance companies to use to disclose benefit and coverage information to maintain consistency across all insurance plans. This template helps people compare insurance plan information and includes:
- What is covered
- What is not covered
- Cost-sharing provisions and exclusions
- Examples of coverage
- Website and telephone number for customer service to get more information
Additionally, all English SBCs must include information on the availability of language services that is written in the required languages.
Under the Affordable Care Act, both the insurer and the employer are responsible for creating and distributing the SBC for fully-insured plans. For self-insured plans the employer is solely responsible for creating and distributing the SBC.
Along with providing a Summary of Benefits and Coverage, all health insurers must also provide a uniform glossary of common terms used in health insurance coverage. Every industry has jargon, and healthcare and insurance is no different. Have you ever tried to read and understand your health insurance policy?
The Affordable Care Act requires all insurers to supply a uniform glossary to explain complicated or confusing terms associated with the health insurance provided. In order to develop standards for defining terms to be included in such glossaries, the National Association of Insurance Commissioners’ (NAIC) had to create a working group that included LEP representatives.
When there are LEP individuals, insurers may have to make a translated version of the uniform glossary available in specific languages. The languages that are required for translating the SBC and uniform glossary are dictated by the threshold of 10% of the population having limited English proficiency.
Providing patient communication in language the patient understands is designed to help all people better evaluate and understand health insurance choices, and to improve participation and outcomes in healthcare.
Studies show that language services save money and resources when they enable LEP patients to understand and be engaged with their heathcare options. Language services boost medication adherence and reduce hospitalizations that result from misunderstanding prescriptions and medical directions.
Hospitals and healthcare institutions should prepare for the increase of LEP patients that they must treat by putting language services in place. Recommendations for expanding language services include the following.
- Use Qualified Professional Translation Companies
- Use Qualified Professional Interpreters
- Hire More Multilingual Staff
- Expand Multilingual Call Centers
- Use On-Demand Phone Interpreting
Insurers, hospitals and healthcare organizations should begin expanding their language services now before the newly covered patients begin using their health insurance to access healthcare. This will reduce costs, improve healthcare and make them ready and better able to serve LEP populations that they will increasingly encounter.
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