OCR Provides Safe Harbor for Non-English Taglines Required by §1557 of the Affordable Care Act

Final Rule. In May 2016, the Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services promulgated final regulations (“Final Rule”) implementing §1557 of the Affordable Care Act. Section 1557 prohibits discrimination in federally assisted health programs on the basis of race, color, national origin, sex, age and disability. To prevent discrimination on the basis of national origin, the Final Rule requires health programs to make foreign language assistance services available to individuals with limited English proficiency, called “LEP” individuals. These are individuals whose primary language is not English and who have limited ability to speak, read, write, or understand English. Health programs that fail to provide these services are subject to administrative penalties (including possible exclusion from federal health programs), and to private civil lawsuits brought by aggrieved individuals.

Taglines Required. One aspect of this obligation is a requirement to post taglines in various non-English languages advising LEP individuals of available language assistance services. The Final Rule requires taglines in the top 15 languages spoken in the state where the health program is located. The Final Rule provided only limited guidance on how a health program could determine the top 15 languages.

Guidance on Top Languages. On September 14, 2016, OCR filled this gap by issuing a list of the top 15 languages spoken in each state and U.S. territory. OCR used recent U.S. Census data to compile the chart. FAQs accompanying the chart state that health programs will be deemed to comply with the tagline requirement if they post taglines in the languages specified in the chart. The OCR chart thus creates a compliance safe harbor for health programs that use it. Of course, health programs are free to add languages and even to use different languages than those specified in the OCR chart, if the health program has supportable evidence that these different languages are prevalent in their particular state.

The OCR chart can be found here. For quick reference, the top 15 languages spoken in Michigan, Illinois and Texas are listed below in descending order of prevalence:

Please click here for the list.

Distribution Requirements. By October 16, 2016, the taglines must be posted and distributed in several ways:OCR has translated its model tagline into 64 languages in an effort to simplify compliance. These translations are available at www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html.

  • Include the taglines in significant publications or significant communications targeted to beneficiaries, enrollees, applicants, or members of the public, which may include patient handbooks, outreach publications, or written notices pertaining to rights or benefits or requiring a response from an individual. This includes correspondence sent directly to an individual as well as general publications. If a publication is small-sized such that the full list of taglines would not easily fit (such as a postcard, trifold and the like), the health program is permitted to include taglines in only the top two non-English languages spoken in the state.
  • Post the taglines in conspicuous physical locations at which the health program interacts with the public.
  • Post the taglines in a conspicuous location on the home page of the health program’s web site. It is permissible for the home page to include only an in-language link that takes the reader directly to the content of the full taglines.

Finally, OCR cautions that compliance with the tagline requirement is only one aspect of a health program’s language assistance services obligations. The health program must make such assistance available to any LEP individual through services such as oral interpreters and written translations, even if the LEP individual speaks a language that is not one of the top 15 spoken in the state.