Summary of Recommendations Providing culturally and linguistically appropriate services is a critical component in promoting

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1 November 9, 2015 Jocelyn Samuels Director Office for Civil Rights U.S. Department of Health and Human Services 200 Independence Avenue, SW Washington, DC Main Office 7501 Wisconsin Ave. Suite 1100W Bethesda, MD Tel Fax Division of Federal, State and Public Affairs 1400 Eye Street, NW Suite 910 Washington, DC Tel FAX Submitted electronically via ATTN: 1557 NPRM (RIN 0945 AA02) Dear Director Samuels: The National Association of Community Health Centers (NACHC) appreciates the opportunity to comment on the Nondiscrimination in Health Programs and Activities proposed rule (RIN 0945 AA02). NACHC represents our nation s community, migrant, and homeless health centers, as well as health centers that target residents of public housing. Health centers play a critical role in the health care system, serving as the health home to over 24 million people. With over 9,000 sites, they provide affordable, high quality, comprehensive primary care to medically underserved individuals, regardless of their insurance status or ability to pay for services. For additional information on health centers, please see the attachment. OCR s rulemaking to implement Section 1557 is an important opportunity to update the application of our existing civil rights laws to our country s evolving healthcare system. NACHC supports strong and specific federal guidance to codify the nondiscrimination rights of all patients. In particular, NACHC wants to comment on the needs of patients with Limited English Proficiency (LED), who are best served in a language other than English. Health centers invest in providing all patients with services that are both culturally and linguistically appropriate to their needs and backgrounds; thus, they often care for patients who are unable to access health care services provided by other health organizations. As a result, health centers see first hand the need for, and positive impact of, providing linguistically appropriate care. Based on this experience, we support the rights of all patients to nondiscrimination on the basis of country of origin, which is integrally tied with access to linguistically appropriate services. Summary of Recommendations Providing culturally and linguistically appropriate services is a critical component in promoting health and equal access to health care. As such, NACHC: Supports the notice of rights to new enrollees going out in the 15 languages spoken by LEP individuals by state, not nationally, to account for regional differences in language needs.

2 Recommends that OCR codify the HHS LEP Guidance thresholds of 5% or 1,000, whichever is less, of the population of persons eligible to be served or likely to be affected in the covered entity s service area, for written translations. Requests that HHS use taglines on all significant and vital publications, ensuring individuals understand their right to translation services; Supports strengthening interpretation requirements, including defining qualified interpreter and reiterate that friends and family members are not appropriate translators and establish minimum standards for oral interpretation on the phone Requests further clarity regarding definition of discrimination as it applies to sex stereotypes, sexual orientation, and gender identity. Supports the collection and assessment of data for 1557 compliance and supports using the race and ethnic categories defined in Section 4302 for more accurate data collection. Discussion of Recommendations around Non Discrimination of Individuals with Limited English Proficiency Provide Notice of Rights in Top Languages by State The proposed rule requires covered entities to distribute a notice that would inform new beneficiaries and enrollees about their rights, including their rights to language access services, free of charge and in a timely manner. We recognize how useful this information will be, and are concerned about members of our community not receiving this information in the language in which they are best served, potentially precluding individuals from accessing care when it is needed. We recommend that a more accurate requirement would be to make available the notices in the top 15 languages for individuals with limited English proficiency within each state, without basing the rule on national LEP population statistics. State data gives a more accurate picture of the language needs by limited English proficient communities. For example, in Washington, the top 15 languages spoken by limited English proficient individuals would include 4 languages (Cambodian, Laotian, Hindi and Thai) that are not part of the top 15 languages nationally. Hmong is one of the top 15 languages spoken by individuals with limited English proficiency in California, accounting for approximately 33,000 individuals, but is not in the top 15 nationally. Similarly, in New Jersey, Gujurati is one of the top 15 languages spoken by individuals with limited English proficiency in the state, representing approximately 30,000 individuals, but not nationally. If the top 15 limited English proficient languages are assessed only nationally, Hmong and Gujurati would not be included and these communities would be without in language notices. Place Taglines on All Significant and Vital Publications Taglines should be included on vital documents to inform Limited English Persons (LEPs) individuals of their rights to translation services and access to a language line. These taglines should be added to any important significant and vital publications or communications for beneficiaries, enrollees, or members of the public. These should be placed in a conspicuous location at the beginning of publications and communications to allow persons with LEP to have

3 an immediate reference for their language access rights. Significant or vital information includes: the summary of benefits and coverage, explanation of benefits, providers lists, outreach publications, terminations, change in status, appeals and anything related to eligibility. Establish a Threshold for Written Translation The proposed regulations do not incorporate specific thresholds for written translation, which runs counter to the existing HHS LEP guidelines. Not having a standard guideline effectively weakens these current mandatory minimums and safe harbor provisions. We strongly recommend that these rules codify the HHS LEP Guidance thresholds of 5% or 1,000, whichever is less, of the population of persons eligible to be served or likely to be affected in the covered entity s service area. Strengthen Interpretation Requirements, including the Definition and Role of a Qualified Interpreter Specific competencies need to be defined which would identify and designate individuals with the skills to serve as qualified interpreters. Defining the role of a qualified interpreter would reduce confusion over who could offer in language services in the most effective manner, eliminating confusion in the clinical setting. Interpreters should be considered competent and qualified in one of two ways: certification with a nationally recognized group, or a competency based assessment. We recognize that many competent community based providers are not nationally certified, yet remain able to serve as effective interpreters. Specifically, this assessment would capture the individual s ability to: 1. Interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, terminology and concepts, and/or 2. Demonstrate proficiency in, and has above average familiarity with speaking or understanding, both spoken English and at least one other spoken language; and is able, for an individual with limited English proficiency, to interpret effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, using any necessary specialized vocabulary and context. Additionally, we urge HHS to: state that using automated computer based translation services does not meet the definition of a competent translation, define the role of Qualified Translator. Friends, Family Members and Children Are Not Appropriate Translators The proposed rule codifies standards set forth in the HHS LEP guidance, namely restrictions on using friends, family members or children for translation services. We strongly agree with these standards as and agree that such provisions are necessary to prevent issues of competency, confidentiality, privacy, and conflict of interest that arise as a result of relying on an informal interpreter.

4 Establish Minimum standards for the provision of oral interpretation services over the phone OCR has stated the importance of telephonic oral interpretation services in the proposed rule, but does not require such services. We strongly encourage that telephonic interpretation services for all languages spoken by LEPs served within a facility are provided at a minimum, considering, as stated, the low capacity needed to provide these services. Discussion of other Recommendations Request for further clarity regarding definition of discrimination as it applies to sex stereotypes, sexual orientation, and gender identity. We support the Leadership Conference on Civil and Human Rights request for further clarity in the final rule regarding the definition of sex discrimination as it applies to sex stereotypes, sexual orientation, and gender identity. Require Collection and Assessment of Data for 1557 Compliance We support requiring data collection as part of the compliance measures for Section Covered entities should be required to collect data on race, ethnicity, language, sex, gender, gender identity, sexual orientation, disability status, country of origin, and age. An essential part of this data collection should include disaggregated data by ethnic group, to best assess the differing needs within broad racial and ethnic categories. Race and ethnicity categories should follow the distinct categories outlined in Section 4302, rather than the aggregate OMB categories. In addition, data collection for race should include an open field for Other Asian and Other Pacific Islander, to ensure the accuracy of self reporting (e.g. if an Afghani checks Other Asian, or a Sri Lankan chooses Asian Indian ). Further, covered entities should be required to assess (and update their assessments) of the populations they serve and are eligible to serve, using the criteria listed above, so that they can appropriately plan how to meet the needs of their clients/patients. HHS should provide guidelines as to how to conduct an assessment and what data may be readily available to covered entities. To collect accurate data, covered entities should: Train staff in collecting granular demographic data, including explaining why this data is being collected; Adopt clear privacy and nondiscrimination protections; Safeguard that patient/enrollee reporting of demographic data be voluntary; and Support analyses based on multiple demographic variables. Utilize HHS Regional Offices to Assure Compliance The proposed rule requires covered entities to designate an internal coordinator of compliance and requires entities of a specific size to set up a grievance procedure. We agree with OCR that both factors lead to better resolution of potential and actual concerns. We thank OCR for

5 establishing this standard and request that the regional HHS offices be charged with assisting organizations with understanding their responsibilities, offering examples of grievance procedures and due process standards and identifying and enforcing this provision with any organizations that fail to comply. We believe that regional HHS offices would have the best understanding of the entities in their areas that fall under the 15 or more employee category and a better understanding of effective procedures with the populations they serve. Regional offices are also more set up to take a hands on approach should any organizations resist or delay set up of grievance or due process standards. Conclusion The communities and patients that health centers serve deserve access to care and the provision of resources in a timely and equitable manner, and we thank OCR for its continued work in this regard. Many of these provisions are essential to set a standard in service for our communities, and set a standard in both civil rights and access to health care in America. We look forward to strong work going forward to ensure that these regulations are robust and enforcement remains effective to ensure access for everyone. For any questions, please contact Colleen Meiman, Director of Regulatory Affairs at cmeiman@nachc.org or Sincerely, Colleen P. Meiman, MPPA Director, Regulatory Affairs National Association of Community Health Centers

6 Attachment: Overview of Section 330 Health Centers For 50 years, Health Centers have provided access to quality and affordable primary and preventive healthcare services to millions of uninsured and medically underserved people nationwide. At present there are almost 1,300 health centers with more than 9,300 sites. Together, they serve over 22 million patients, including nearly seven million children and more than a quarter million veterans. Health centers provide care to all individuals, regardless of their ability to pay. All health centers provide a full range of primary and preventive services, as well as services that enable patients to access health care appropriately (e.g., translation, health education, transportation.) A growing number of Health Centers also provide dental, behavioral health, pharmacy, and other important supplemental services. To be approved by the Federal government as a Health Center, an organization must meet requirements outlined in Section 330 of the Public Health Service Act. These requirements include, but are not limited to: Serve a designated medically underserved area or a medically underserved population. Some Health Centers serve an entire community, while other target specific populations, such as persons experiencing homelessness or migrant farmworkers. Offer services to all persons, regardless of the person s ability to pay. Charge no more than a nominal fee to patients whose incomes are below the Federal Poverty Level (FPL) Charge persons whose incomes are between 100% and 200% FPL based on a sliding fee scale Be governed by a board of directors, of whom a majority of members must be users of the health center. Most Section 330 Health Centers receive Federal grants from the Bureau of Primary Health Care (BPHC) within HRSA. BPHC s grants are intended to provide funds to assist health centers in covering the otherwise uncompensated costs of caring to uninsured and underinsured indigent patients, as well as to maintain the health center s infrastructure. Patients who are not indigent or who have insurance, whether public or private, are expected to pay for the services rendered. In 2013, on average, the insurance status of Health Center patients is as follows: 41% are Medicaid recipients 35% are uninsured 14% are privately insured 8% are Medicare recipients. No two health centers are alike, but they all share one common purpose: to provide primary health care services that are coordinated, culturally and linguistically competent, and community directed care to uninsured and medically underserved people.