Federal Updates on Language Access Mara Youdelman, youdelman@healthlaw

1. Federal Updates on Language Access Mara Youdelman, youdelman@healthlaw.org Managing Attorney (DC Office) Chair, CCHI CHIA Conference March 9, 2012 “Securing Health Rights for Those in Need”

2. NHeLP • National non-profit law firm committed to improving healthcare access and quality for limited-income individuals • Offices in Washington D.C., Los Angeles, and North Carolina • Visit our website at: www.healthlaw.org

3. Today’s Presentation Topics • Health Insurance is changing! • Nondiscrimination • Language Access • Data Collection • Opportunities

4. Health Insurance is Changing! • 2009 – CHIPRA & Health IT laws enacted • CHIPRA gave states more $ for language services in Medicaid/CHIP • 2010 – major health reform enacted • 2014 – it all comes together (we think)!

5. Health Insurance is Changing! • Total uninsured who get insurance: 32 million • Individual mandate (with limited exceptions) • Medicaid expansion (16 million) • State health exchanges created (24 million) • Immigrants? • Insurance Market Reforms • No pre-existing condition exclusions • No annual or lifetime limits • Additional reforms

6. Nondiscrimination • Extends including Title VI (and other federal civil rights laws) prohibiting discrimination on basis of race, color, national origin to: • any health program or activity receiving federal financial assistance; • any program or activity administered by a federal Executive agency; and • Exchanges and other entities established under ACA Tit. 1 • Includes cause of action • HHS is enforcing this now – can file complaints

7. Language Access – The Asks • Translate application, all vital documents and notices using 5%/500 threshold for enrollees (NOT county thresholds) • Include taglines in at least 15 languages on all termination and other notices or adequate notice requirements may not be met • Provide oral assistance in all languages to assist with filing application, complaints and follow-up

8. Exchanges • Culturally and Linguistically Appropriate Services explicitly required for: • appeals notices • Summary of Benefits and Coverage • patient navigators • Language services required in Exchanges/QHPs pursuant to Title VI and sec. 1557 because: • Federal funds for cost-sharing/premium assistance • Exchanges created under Tit. I of the ACA

9. Recommendations for Exchanges & Medicaid/CHIP • Ensure all oral communication (including consumer assistance) and call center has bilingual staff/interpreters for all languages • Ensure website has portal for LEP individuals and taglines • Translate vital documents and website into Spanish and any other frequently encountered languages • Use 5%/500 threshold for translating materials • Include taglines in 15 languages on all notices • Conduct outreach & education, open enrollment in culturally and linguistically appropriate manner • Collect language needs on application to help with identifying needs and planning

10. Appeals & Notices Amended IFR • Specifically requires consideration of C&L • Language access requirements: • Tagline (1 sentence) on a notice in a non-English language that meets a 10% threshold for a “county” evaluation  • ORAL assistance (i.e. thru customer service lines) in the non-English languages that meet the 10% threshold • Participant can request translated notice in threshold languages • County threshold

11. Summary of Benefits & Coverage • Specifically requires consideration of C&L • Adopts same standard from appeals/notices

12. The Impact – 10% v. 5%/500 A 10% threshold leaves out millions of LEP individuals!

13. Electronic Health Records (EHRs) • HI-Tech Act enacted in 2009 • Provides $ for Medicaid and Medicare providers to adopt EHRs • Must attest to “meaningful use” of certified EHR technology to be eligible for $ • “Meaningful use” requires collection of r/e/l/g • After 2015, Medicare providers must demonstrate meaningful use or lose 1% of reimbursements

14. Electronic Health Records (EHRs) • EHRs must collect race, ethnicity and language • Healthcare providers aren’t currently required to use this data or collect info on usage of language services • Still need advocacy to ensure EHRs are built to analyze data for disparities & track usage of language services

15. Data Collection beyond EHRs • New requirements apply to health care/public health programs, activities, and surveys • collect race, ethnicity, primary language, sex, disability status • CHIP to collect language data of enrollees & parents/guardians • Medicare to collect data

16. Data Collection beyond EHRs • Need to ensure Exchanges • are required to collect and analyze this data • share this data with participating plans/insurers • require plans/insurers to analyze data and address disparities • require plans/insurers to note when language services are provided

17. Health Equity and Accountability Act of 2011 • Builds on ACA gains but addresses what was left behind • Sponsored by Tri-Caucuses • Introduced Fall 2011 in the House • Expect Senate introduction this winter/spring • Includes additional language access provisions

18. Coming Attractions • Exchanges & mandates fully implemented in 2014 • Medicaid expansion fully implemented in 2014 • CHIP may expire in 2019

19. Opportunities • Commenting on regulations • Getting engaged in CA development processes • Educating about existence of these provisions • Protecting Medicaid • Preserving the ACA

20. Thanks for participating! Mara Youdelman, youdelman@healthlaw.org www.healthlaw.org