New limited English proficiency rule to start Oct. 17

Sometimes, “getting paid” means implementing regulations as cheaply as possible without running afoul of the law. Such is the case with a federal rule that goes into effect next week.

Beginning Oct. 17, the U.S. Department of Health and Human Services (HHS) will require most physician practices to notify patients with limited English proficiency (LEP) of their freedom from discrimination and of the availability of language assistance services. This rule applies to all health programs or activities that receive funding from or are administered by HHS and the health insurance marketplaces as well as all plans offered by issuers that participate in those marketplaces. For instance, if you receive Medicaid payments or a “meaningful use” incentive payment, this rule applies to you. However, if your practice’s only source of federal funds is through Medicare Part B, then this rule does not apply to you.

To comply with the rule, your practice must ensure “meaningful access” for those with LEP by adhering to the following requirements:

•    You must post a notice of nondiscrimination in English and may combine the content of the notice with other notices required under other federal laws.
•    You must post taglines written in the top 15 languages in the state where your practice does business indicating that language assistance is available. HHS has determined the top 15 languages for each state. Ideally, the language of the tagline should be in the language to which it refers; HHS has translated resources on its website.

You must post the notices in a sufficiently prominent and noticeable place in your office, and the rule requires that you post the language assistance taglines on all “significant publications or communications.” This means items that would result in substantial consequences if the patient did not understand (e.g., notice of a treatment plan or a termination of coverage). If the publication or communication is electronic, it must have a link to the notice of nondiscrimination and 15 taglines on the bottom. If it is paper, the publication must have the statement of nondiscrimination and taglines, unless it is something small, like a postcard. In those cases, it only needs the statement of nondiscrimination and the tagline in the top two languages. The notice of nondiscrimination and top 15 taglines should also be at the bottom of your website.

If you have not already done so, now would be a good time to develop a plan to address the needs of patients with LEP. Ideally, the plan should include all languages frequently used in the practice, even if they are not included in the top 15 languages in your state. You may also consider signing up with a language assistance call center to help with the translation of documents as well as telephonic or in-person interpretation when needed. For example, some states’ Medicaid programs regard medical interpretation as a covered service and contract with a vendor to provide it. Your local hospital may also have interpreter resources. Finally, you should consider having commonly used documents translated for frequently used languages.

Enforcement of the new rule will fall to HHS’s Office of Civil Rights, which has indicated that it will use a flexible, context-specific analysis to determine any violations on a case-by-case basis. For additional information, check out the HHS summary and fact sheets and training materials.

– Kent Moore, Senior Strategist for Physician Payment for the American Academy of Family Physicians