Important New Language Assistance Olbigations for Family Physicians
The Affordable Care Act (ACA) includes various provisions regarding the medical treatment of “limited English proficiency” individuals (LEP Individuals), which are defined as individuals whose “primary language for communication is not English” and who have a “limited ability to read, write, speak or understand English.” Recently, federal regulations clarified that, in certain circumstances, providers must provide a variety of services to LEP Individuals, including, a language interpreter.
While the effective dates of the various new requirements vary, there is an October 16, 2016 deadline for physicians who receive “federal assistance” to post notices of their non-discrimination and language assistance services. This article will focus on who this requirement likely applies to, and for those affected, what notice must be posted.
Analysis of the ACA’s Notification Requirement Regarding LEP Individuals
The federal regulations regarding LEP Individuals apply only to physicians who accept “financial assistance” as defined by the Department of Health and Human Services (HHS). Notably, HHS guidance released along with the regulations clarify that “financial assistance” does not include the acceptance of Medicare Part B, which encompasses most outpatient services. Accordingly, if you are a family physician whose only link to federal assistance is through acceptance of Medicare Part B, then you are likely excluded from the ACA’s notice requirements concerning LEP Individuals.
On the other hand, federal assistance is defined as including participation in Medicaid programs, which includes Medi-Cal in California. Therefore, if you accept Medi-Cal patients, then you are likely subject to the ACA’s notice requirement described herein.
Physicians who are deemed to accept federal assistance must, by October 16, 2016, post ACA mandated “non-discrimination policies” and “taglines” in their offices, in publications targeted at the public or patients and on their websites. A tagline is a “short statement written in non-English languages that indicate the availability of language assistance services free of charge.”
A provider’s “small-sized” publications, such as “postcards and tri-fold brochures,” must include the following statement: “The covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities.” Additionally, such small sized publications must include taglines (indicating the availability of free language interpreters) in the “top two languages spoken by limited English proficiency of the relevant State . . . .”
However, for provider’s physical locations, websites, and larger documents, the non-discrimination policy notification must state each of the following seven items:
- The covered entity does not discriminate against federally protected groups;
- The covered entity provides appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, free of charge and in a timely manner, when they are necessary to ensure an equal opportunity to participate to individuals with disabilities;
- The covered entity provides language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner, when such services are necessary to provide meaningful access to individuals with limited English proficiency;
- How to obtain the aids and services described above;
- If applicable, identification of, and contact information for, the employee responsible for coordinating the covered entity's compliance (elaborated on below);
- If applicable, the availability of the grievance procedure described below and how to file a grievance (elaborated on below); and
- How to file a discrimination complaint with Office for Civil Rights.
Additionally, the taglines (indicating the availability of free language interpreters) accompanying the seven items must be written in at least the top 15 languages spoken in California. Accordingly, a provider’s practice must take care to ensure its waiting area, website, and publications allocate sufficient space for the required notifications.
These recent regulations impart new notification responsibilities on health care providers, and as explained above, may apply to the family physician. Failure to comply with these responsibilities could open physicians and their practices up to significant liability.
The HHS has been granted the discretion to broadly take “remedial action” for any violation of the law.
Notably, the notice requirements are just one new area of compliance for providers under the ACA. As always, this article does not reflect a complete list of legal issues that may arise, nor does it constitute legal advice. If you have questions about compliance with these new laws, we recommend that you consult an attorney.
 Defined as “an individual whose primary language for communication is not English and who has a limited ability to read, write, speak or understand English.” 45 C.F.R. § 92.4.
 81 F.R. § 31383; see also http://www.hhs.gov/civil-rights/for-individuals/faqs/what-qualifies-as-f....
 45 C.F.R. § 92.4.
 Id. § 92.8.
 Id. § 92.6.
Scott Kessenick practices in all areas of Kessenick Gamma & Free, LLP specialization, a San Francisco firm providing legal representation to physicians, physician groups, and other health care professionals. He may be reached at skessenick@kgf-‐lawfirm.com.
The articles provided in Practice Management News are general. They do not constitute legal, practice management or coding advice in any particular factual situation or create at attorney-client relationship. Consult your attorney or other professional for advice in your particular situation.