In the early days of the Health Information Technology for Economic and Clinical Health Act (the HITECH Act), “covered entities” like hospitals, clinics, doctors, and the like were protected from penalties if they could prove that they didn’t know the rules. That protection was removed. Now, it’s assumed that covered entities know or should know the rules. But some of the rules are confusing or challenging to implement. One example is Section 1557 of the Affordable Care Act, the new Civil Rights and Language Services regulations.
What’s Section 1557?
Section 1557 has been in force since 2010 and the Final Rule was issued last spring, but many healthcare providers are just now getting notices that they must comply with it. Who is affected?
- Any health program or activity which received funding from HHS
- Any health program or activity administered by HHS
- Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces
At minimum, you can expect to be affected if you accept Medicare payments.
There are three basic requirements for this new rule:
- A statement of non-discrimination and information about how people with disabilities or having limited English skill can get assistance in communicating with the healthcare provider must be posted on your website. The Office of Civil Rights has provided a sample statement you can use.
- This information must be posted in the 15 languages most commonly spoken in your state, as well as in English. OCR has provided 64 “taglines” which you can use for this purpose, as well as a table showing the official Top 15.
- Links to all these statements must be provided on your homepage.
Here’s the wording in the final rule that applies specifically to websites:
[C]overed entities must post the English-language notice required in § 92.8(a) and taglines required in § 92.8(d) in a conspicuously-visible font size in: Significant publications..; and in a conspicuous location on the home page of a covered entity’s Web site.
[C]overed entities may satisfy the requirement to post the notice on the covered entity’s home page by including a link in a conspicuous location on the covered entity’s home page that immediately directs the individual to the content of the notice elsewhere on the Web site. …[C]overed entities can comply by posting “in language” Web links, which are links written in each of the 15 non-English languages posted conspicuously on the home page that direct the individual to the full text of the tagline indicating how the individual may obtain language assistance services. For instance, a tagline directing an individual to a Web site with the full text of a tagline written in Haitian Creole should appear as “Kreyòl Ayisien” rather than “Haitian Creole.”
In other words, the notices must be on your website in the top languages in your state, and there must be links to these notices in those top 15 languages on your homepage.
How to comply with the website rules of Section 1557
There was some discussion about requiring all the notices in full to be on the home page of each website, but the agency determined that this was not practical. “In today’s increasingly electronic and digital age where covered entities may make their first impressions through Web content (often on small mobile devices),” HHS wrote in the final rule, “we are sensitive to covered entities’ need for autonomy in designing and managing the appearance of their public internet home pages.”
In spite of this sensitivity, HHS concluded that downloading and posting the notices on the website would take 10 minutes. This strikes us as unrealistic. We know that many practices don’t have direct access to their websites or the skills to post the notices. We also know that building that many new pages and creating that many links with any thought toward design will take more than 10 minutes.
This may be why many covered entities just haven’t gotten around to complying with this rule yet. If you’re in that position, here are some things to consider:
- Finding the best spot for the homepage links may be a challenge. Adding 15 links to your homepage would almost never be a good design decision. We think first of the footer, the section circled in the screenshot below. If you have a sidebar on your homepage, that might be another option.
- The 15 top languages in your state may not be the languages you encounter most often, or the languages for which you actually have interpreters on hand. That doesn’t really matter for the law, but if you know that you have Hindi-speaking patients, make sure you include Hindi along with the required 15.
- A client asked us about the languages that use different alphabets. Our initial reaction was that it shouldn’t be a problem; the modern internet can handle multiple alphabets. But we found out otherwise. The Lao language (called “Laotian” in the government documents) is what linguists call a “tone” language. The word that we might write as “ma” can mean “dog,” “horse,” and a bunch of other stuff depending on the movement of the voice as the word is said. This movement of the voice is shown in writing with a bunch of diacritic markers — little squiggles above the letters. When we copied and pasted the Lao notice sent by HHS into several different websites and previewed it, we found that the diacritics were in different places. It wasn’t impossible to read, but it was hard to read, and seemed unnatural. Using PDFs will make more sense for Lao, at least, even though HTML web pages are generally more accessible than PDFs.
- Some facilities are posting a separate page with all the notices on it. This seems sensible to us. However, you would still have to put all those links on your homepage. Having 15 or more links to a single page is not great from the point of view of SEO or accessibility. On the other hand, having 15+ new pages, each containing three sentences with identical information, is also not ideal. 15+ PDFs might be a better bet.
Work with your web team to come up with the best plan for your particular website. It’s going to take more than 10 minutes, but making your website comply is not a problem if you consider the factors we’ve listed and plan ahead.