Section 1557 Comment Period Open!

Only July 25, 2022, the U.S. Department of Health and Human Services announced proposed changes to Section 1557 of the Affordable Care Act (ACA). I’ve been relentlessly stalking the Regulations.gov website at all hours of the day and night waiting for the comment period to open up, and some time between last night and this morning it was posted!

What is Section 1557 of the ACA?

It’s the nondiscrimination provision of the Affordable Care Act. In terms of language access and the provision of interpretation services, it further expands upon the protections originally set forth in Title VI of the Civil Rights Act of 1964 based on race, color, and national origin. National origin includes someone’s ability or inability to speak English, so if an entity receiving federal funding (directly or indirectly) does not provide language assistance to someone with limited English proficiency (LEP), it can be considered discrimination based on national origin.

What does Section 1557 do for language access?

The two major points I discuss with my students when teaching them about language access laws are that Section 1557:

1. Mandates the use of qualified interpreters in healthcare.
2. Prohibits the use of minors or accompanying adults as interpreters except in cases of emergency.

However, these are what I personally consider to be what are still the meaningful protections supposedly offered by Section 1557 in terms of spoken languages. There are some other protections that were actually significantly watered down by The Final Rule in the summer of 2020. The Final Rule was a Trump-era piece of legislation that removed quite a few things based on the following justification:

This will better comply with the mandates of Congress, address legal concerns, relieve billions of dollars in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the scope of Section 1557 in keeping with pre-existing civil rights statutes and regulations […]Justification for the Final Rule (Section 1557) as issued by the Centers for Medicare and Medicaid Services

What did the Final Rule change?

I mentioned the two key protections provided by Section 1557 already (at least in my professional opinion) but here’s a little bit of a more expanded overview:

So, everything in the first column/section (“1557 Provisions Still in Place”) are things that are still in place, whereas everything in the second column/section (“The Final Rule [Changes]”) are changes that were made. NHeLP (the National Health Law Program) actually has a really great article sharing their criticisms of these changes.

What changes to Section 1557 are being proposed?

Instead of sharing all the details here, I’m going to direct you to the press release from the HHS website. Of course, not all of these things relate directly to language access, but may still affect patients with LEP, as well as D/deaf or hard of hearing patients in other ways, so I highly recommend checking it out.

With respect to proposed changes relating specifically and directly to language access, this is what the HHS lists in their bullet points (directly quoted):

• Requires entities to give staff training on the provision of language assistance services for individuals with limited English proficiency (LEP), and effective communication and reasonable modifications to policies and procedures for people with disabilities.
• Requires covered entities to provide a notice of nondiscrimination along with a notice of the availability of language assistance services and auxiliary aids and services.
• Clarifies that nondiscrimination requirements applicable to health programs and activities include those services offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities.

What Kelly thinks

I’ve got opinions and I’m going to share them here. If you don’t care to read my opinion, that is perfectly fine, but even if my opinion differs from yours on this particular piece of legislation, it’s always a good idea to hear out other opinions for a number of reasons. This includes me. If you disagree with my opinion, you are absolutely welcome to comment on this article or reach out to me and I will do my very best to not only read it, but consider it. Doing so is the only way we as a community of linguists can learn and grow.

I will say my initial reaction when seeing these proposed changes was, “That’s it?” My experience with lawmaking in the U.S. has been one of complete and utter frustration. Laws and regulations often get passed with superficial, little, or no consideration for the people these pieces of legislation will affect (how can people with LEP give feedback on this law that affects them?). Secondly, without fully understanding the depth and breadth of the issue the piece of legislation is legislating, laws and regulations are often unnecessarily confusing, overly vague, or chock full of loopholes that are ruthlessly taken advantage of. I feel like what I’ve read on these proposed changes sound nice, but at the end of the day they don’t go far enough because the understanding of the complex realities of people with LEP and folks who are D/deaf or hard of hearing is incredibly limited.

That being said, there’s only so many things we can add to our wish lists, especially since the comment box for this piece of legislation only allows 5,000 characters. This is a summary of what I shared:

• Hold language service providers (LSPs) accountable for utilizing unqualified or underqualified interpreters
• Define qualified interpreter using the prerequisite requirements from the two national certification bodies for medical interpreters in the U.S. (CCHI & NBCMI)
  • Note: This does not mean I am suggesting all interpreters must be certified. Requiring certification would either limit access to languages of lesser diffusion OR would require what would be, in my opinion, a complicated definition (e.g. languages x, y, z require oral certification, languages a, b, c require written certification, interpreters without English as a working language [e.g. relay interpreters] are an exception, etc.) which would result in confusion.
• Require “bilingual” healthcare providers to have their language skills tested before working with patients with LEP (limited English proficiency) in their non-English language
• Clearly define emergency in the provision that prohibits the use of minors or accompanying adults as interpreters; make sure to emphasize that simple receiving treatment in the ER does NOT constitute an emergency since some ERs use this to exempt themselves from providing any language services at all

A lot of this may seem like it’s coming out of left field to some of you, but in my day-to-day practice as a Spanish medical interpreter in Richmond, Virginia, these are the concerns I hear daily, not only from the patients with LEP I encounter, their friends/family, leaders in the LEP community, advocates for the LEP community in my area, and healthcare providers who work with patients with LEP, but also from medical interpreters across the world providing services to U.S. healthcare clients.

If you’re interested in reading my full comment, it has been sent for review by HHS, and I may post it once it is approved.

How can I comment on the proposed rule changes?

You can read the proposed rule changes and comment on the proposed changes at the following link:

https://www.regulations.gov/document/CMS_FRDOC_0001-3373

For ease of access, I have also created a shortened URL for sharing:

bit.ly/s1557

I highly recommend reading up on Section 1557, its scope, and differing opinions on its impact and implementation before commenting. I also highly encourage you to, instead of focusing on your individual concerns, center the impact of these changes on the communities we serve as interpreters and translators. If you have connections with people who will be affected by this legislation (people with LEP, the d/Deaf and hard of hearing community, people with disabilities who need auxiliary aids for communication), please communicate with them. See how they feel. Empower them to give feedback on this proposed change as well because their feedback is so incredibly important, but often not acknowledged or sought out.