A federal regulation demands that certain health care organizations provide patients who have limited English skills a written notice of free translation services.
But the Trump administration wants to ease those regulations and also no longer require that directions be given to patients on how they can report discrimination they experience.
The changes could save $3.16 billion over five years for the health care industry, according to the administration.
These changes are part of a broader proposed regulation that would roll back protections banning discrimination based on gender identity. The public comment period closes Aug. 13.
The proposal would not change the government’s requirements that insurers and medical facilities provide foreign language translators and interpreters for non-English speakers.
The government acknowledged in the proposal that the change would lead to fewer people with limited English skills accessing health care and fewer reports of discrimination. But it also questioned the need for these notices, pointing out that in some areas health organizations spend money to accommodate a small contingent of language speakers. For example, notices in Wyoming must account for the 40 Gujarati speakers — a language of India — in the state.
In all, the government said, the impact of doing away with these requirements would be “negligible.”
“I haven’t seen any reason to believe that this will only have a negligible impact,” said Mara Youdelman, managing attorney for the Washington, D.C., office of the National Health Law Program, a civil rights advocacy group. She said it “will likely result in people just not knowing their rights but not accessing care to which they’re eligible.”
Regulations under Section 1557 of the Affordable Care Act require insurers, hospitals and others to include a “tagline” of free translation services for the 15 languages that are most prevalent in a state. Additionally, it requires a nondiscrimination clause and directions on how to file a complaint with the Department of Health and Human Services Office for Civil Rights.
This information must be posted on websites, in physical spaces and in “significant communications” to the patient. But the ambiguity of that phrase prompted health care organizations to post the required information on numerous pieces of material — such as a separate page about language options sent with each Explanation of Benefits statement from an insurer. Together, these efforts cost organizations billions of dollars.
“No one realized exactly what that definition of ‘significant communication’ — how much would be wrapped up in that,” said Katie Keith, a Georgetown University professor who specializes in the ACA.
An estimated 25.9 million people in the United States in 2017 had limited English proficiency, the Census Bureau reported. Patients facing language barriers have a higher risk of health care complications, such as surgical infections and falls, because they may misunderstand a doctor’s orders, make mistakes preparing for procedures or improperly use medications.
In this latest proposal, however, the federal government questions whether the written notices are needed. The majority of enrollees speak English — census data from 2017 showed that 91.5% of people over age 5 spoke only English at home or spoke the language “very well.” In certain states, the proposal claims, every enrollee receives a notice for translation services in a language that only a few dozen people speak in the area.
Other state and federal laws protect the rights of patients with limited language services, the proposed rule says. It also cites evidence of some enrollees not liking the extra forms and being less inclined to open their mail because of them.
“These complaints make us concerned that the Section 1557 Regulation has resulted in ‘cognitive overload,’” the document stated, “such that individuals experience a diminished ability to process information” because of the additional paperwork.
Anecdotal reports cited by the government also point out that the notices did not significantly increase the number of patients using language services and reporting complaints. However, the proposed rule also estimates at least 90% of hospitals and physicians were not complying with the requirements.
Youdelman admitted she does not have concrete data showing that these taglines translate to increased access to services. However, she added, removing them wholesale without a promise to prevent discrimination in a different way is also counterproductive.
“Eliminating taglines is not the correct solution,” Youdelman said. “There is a way to inform folks while being cost-conscious.”
Health insurers and pharmacy benefit managers’ reactions to the proposed change have been tepid. The Pharmaceutical Care Management Association — the trade organization for pharmacy benefit managers — said in an email it “believes all consumers should be informed regarding translation services.” America’s Health Insurance Plans, the trade association for health insurers, said in an email that insurers would make sure consumers get the support they need to understand information — “including providing phone interpreters and written translations for customers who need them.”
Keith said that if the proposal is finalized more patients would not understand information involving their health. Some of these details on insurance and billing documents are already difficult for native English speakers to decipher and could be a challenge for less fluent people.
“Anytime you’re not notifying people of their rights,” Youdelman said, “you disempower them.”