ebook-InDemand-Interpreting-Major-changes-to-the-ACA-Part1

28 Pages·2016·3.9 MB·English

Major Changes to the ACA –
How Will They Affect Your Language Access
Program?
Sponsored by InDemand Interpreting
Major Changes to the ACA E-book Series:
PART 1: What Are the New Regulations?
PART 2: How to Comply With the New Regulations?
PART 3: Leveraging Technologies as Part of Your
Compliance Strategy
Major Changes to the ACA –
How Will They Affect Your Language Access Program?
PART 1: What are the New
Regulations?
AUTHORED BY:
David B. Hunt, J.D. - President and CEO, Critical Measures
Sponsored by InDemand Interpreting
This e-book will cover:
1. Understand the new ACA anti-discrimination regulations.
2. Understand how these regulations will impact your language access
program
3. Understand how the new regulations will promote the use of qualified
medical interpreters and translators and substantially restrict the use of
unqualified interpreters (such as untrained bilingual staff, adult family
members, friends and minor children)
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Overview of Federal Language
Access Laws
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MAJOR CHANGES TO THE ACA
Title VI of the Civil Rights Act of 1964
• Prevents federal money from being used to support programs that discriminate on the
basis of race, color or national origin.
• Providers covered by Title VI if they receive federal funds (Medicare, Medicaid, etc.)
Exception: Medicare Part B clinics
• Requires providers to take “reasonable steps” to provide “meaningful access” to federal
health programs.
• U.S. citizenship not required. (“Persons” vs citizens)
• Failure to provide free language access to LEP regarded as national origin discrimination.
Lau v. Nichols, (U.S. 1974)
• No private right to sue for language access violations. (Alexander v. Sandoval,
(U.S. 2001, Scalia)
• Right to select method of language assistance belongs to M.D.
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MAJOR CHANGES TO THE ACA
Americans With Disabilities Act (ADA)
• Section 504 of the Rehabilitation Act of 1973 requires recipients of federal financial aid
to be equally accessible to handicapped persons. Duty to ensure “effective
communication” if 15+ ees.
• Titles II and III of the Americans with Disabilities Act prohibit discrimination against
persons with disabilities in places of public accommodation. (No employer size limit.)
• Both of these laws harmonized by the ADA Amendments Act (ADAAA,2008).
• Exceptions: must accommodate unless “undue burden” or “fundamental alteration
of program”. (Note: Fogari decision)
• Private cause of action allowed (unlike Title VI).
• Legal duty extends beyond patient.
• Providers have discretion but “primary consideration” should be given to patient’s
preferred method of accommodation. (Title II standard is higher than Title III)
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MAJOR CHANGES TO THE ACA
Section 1557 of the Affordable Care Act (ACA)
• Section 1557 of the ACA prohibits discrimination on the basis of race, color, national
origin, sex, disability and age by:
– Any health program/activity that receives federal funding
– Includes health insurance marketplaces and all plans offered by issuers that
participate in those marketplaces
• First federal civil rights law to prohibit sex discrimination in health care. (Impacts
LGBTQ, sexual identity, transgendered)
• Excludes Medicare Part B providers. No employer size restriction.
• Final rule little different from proposed rule in content.
• Gives LEP private right to sue under ACA (not Title VI)
• Creates major changes in the law of language access
• Effective date: July 18, 2016. (Except for health plans…January 1, 2017)
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MAJOR CHANGES TO THE ACA
Enforcement of the New ACA Regulations
• Enforcement mechanisms under Title VI, Title IX, the Age Act and Section 504 apply to
violations of Section 1557
• Enforcement agency: OCR (not DOJ). OCR authorized to conduct compliance reviews
and complaint investigations as well as to provide technical assistance and guidance.
OCR may consider conducting unannounced onsite compliance reviews
• Covered entities required to keep records, submit compliance reports to OCR, name a
designated official to be responsible for compliance.
• Noncompliance could result in suspension of, termination or of refusal to grant or
continue Federal financial assistance or a referral to DOJ with recommendation to bring
legal proceedings.
• Private right of action and compensatory damages are available for violations of Section
1557 regulations. Note applicability of Civil Rights Attorney’s Fees Act of 1976.
• Violations by one hospital in a system may occasion remedial action by the entire
system.
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Final Rules Are Federal
Regulations Not “Guidance”
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