The Centers for Medicare & Medicaid Services (CMS) began its “Equity Plan for Improving Quality in Medicare” in 2015 emphasizing six priority areas for reducing health care disparities in the Medicare program. Two of the priority areas were increasing physical accessibility of health care facilities and improving communication and language access for Limited-English Proficiency (LEP) patients and patients with disabilities. Eight percent of today’s Medicare beneficiaries are LEP patients and almost 15% have hearing impairments that may hinder effective communication with their health care providers.
CMS is now using information gathered during year one of the Equity Plan to develop a brief on how providers can best meet the needs of these specific patient populations. CMS pledges to continue to raise awareness and to research language assistance practices across different health care settings, as well as to develop and disseminate technical assistance to aid hospitals.
The Equity Plan’s focus on language assistance stems from Section 1557 of the Affordable Care Act. Section 1557 and its final regulatory rule affirmatively require hospitals to take reasonable steps to provide meaningful access (such as qualified interpreters or auxiliary aids) to LEP and disabled patients. In evaluating whether a hospital is meeting its meaningful access obligation, HHS looks at two factors: 1) the nature and importance of the health program or activity and the particular communication at issue; and 2) other relevant factors including whether the hospital has developed and implemented an effective written language access plan.
Although not required under Section 1557, HHS recommends that all covered entities adopt an effective written language access plan that considers how the entity will: determine a patient’s primary language; identify a telephonic oral interpretation service to access qualified interpreters as needed; identify a translation service to access qualified translators as needed; identify different types of language assistance services that may be required; and identify any types of documents for which written translations would routinely be needed. The entity should also train its employees and practitioners on its policy.
Section 1557 also brought with it new significant legal risks: it provides a private right of action if a covered entity’s practices or policies effectively discriminate against a protected class. This essentially gives an LEP or disabled patient the ability to force a hospital to begin to meets its meaningful access obligations and to punish it for having not yet done so.
As the Equity Plan makes clear, covered entities must take seriously their obligations to LEP and disabled patients; en effective language access plan is an essential element of meeting those obligations.