Medicare Compliance & Reimbursement

Learn where you will find sample documents and translations.

In a recent proposed rule, the U.S Department of Health and Human Services (HHS) adopts provisions requiring providers to offer access to individuals with limited English proficiency (LEP) and disabilities. But although the proposed rule aims to shield providers from “undue burden,” it also leaves a lot of gray areas that could become hidden traps.

In the proposed rule, Nondiscrimination in Health Programs and Activities, which is largely based on protections established under the Patient Protection and Affordable Care Act (ACA) in 2010, HHS adopts the requirement for providers to offer meaningful access to individuals with LEP and disabilities. This “meaningful access” standard is a “longstanding principal,” according to healthcare attorney Pia Dean with the law firm Holland & Hart, LLP, in Denver.

Specifically, the proposed rule requires covered entities (providers that receive funding from HHS) to post a notice stating that consumers have a right to communication assistance, as well as post taglines in the top 15 languages spoken by individuals with LEP nationally, indicating the availability of assistance.

Caveat: The proposed regulation includes an exception for undue burden, Dean says. And in determining what the standard requires, the HHS Office for Civil Rights (OCR) “will evaluate each case on its facts, including the nature of the communication, how often the situation is encountered, and the resources of the entity.”

Also to reduce the burden on entities, OCR will provide a sample notice and translated taglines that providers can use, and will translate the notice into 15 languages and provide translated notices to covered entities. Keep an eye on OCR’s website (www.hhs.gov/ocr/office/) for these notice samples and translations, after HHS finalizes the proposed rule.

Best strategy: Assess your current language assistance plan and approaches for ensuring access to information for individuals with LEP and disabilities, to assess the impact that the proposed rule would have on those efforts, advised attorneys Lynn Shapiro Snyder and Helaine Fingold of Epstein Becker & Green, P.C. in an October 2015 analysis.