The reality in America is that millions don’t speak English, or English is not their first language. The Health and Human Services Department studied its own efforts to make information and services available to non-English speakers, as part of compliance with the Biden Administration’s Executive Order 13-985 on racial equity. With what it found, the director of HHS’s Office for Civil Rights, Melanie Fontes Rainer.

Interview Transcript: 

Tom Temin What were you seeking to find out? Was it more what HHS is doing to make sure that you are there with the languages people need online and so forth? Or was it measuring access externally for people that don’t speak English or have limited English ability?

Melanie Fontes Rainer We have a lot of data that shows there’s a lack of meaningful language access in this country and that that can lead to inequitable access to the programs and services we run at the Department of Health and Human Services. We know that 21.5% of people in the United States speak a language other than English at home. And of those, 8.2% speak English less than very well and therefore would meet the department’s definition of limited English proficiency. If you don’t know what’s being said, if you can’t communicate with your provider, how are you supposed to establish that patient-provider trust? Understand the severity of what’s happening to you, what is needed to make you better, amongst other things like bills, insurance, other things that are in the health care space can be jargony and are hard to understand even if you don’t have a limited English proficiency. So the report we put out summarizes the department’s progress that we’ve made on improving this provision of meaningful language access and assistance to language assistance, services for persons with limited English proficiency, and identify steps to strengthen this work across HHS. Of note, this report was translated into English, Spanish, Chinese and traditional Chinese, which is something the Department is trying to do more of.

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Tom Temin Question on those to whom these provisions apply is not simply HHS itself, but HHS funds many of the third party providers of health care and other services throughout the country to the tune of trillions, literally. And so those organizations also have to have language access because they are ultimately federally funded. Fair to say?

Melanie Fontes Rainer It is both the services we fund and the services conducted by us, right? Which is a pretty broad swath of programs and services.

Tom Temin Yeah, because if you look at, say, Medicare, that’s probably two thirds or three fourths of the medical establishment.

Melanie Fontes Rainer Yeah. I mean, I think you’d be hard pressed to find a hospital in the United States that doesn’t accept Medicare. This work was dormant for a long time. The department hadn’t really done anything since 2016. The previous administration dismantled the HHS Language Access Steering Committee, so we’ve recently relaunched that. That’s run by our office and senior leaders across all of HHS and representation from every single part of HHS. And we’re working to update and refresh language access plans. Some of the plans, as noted in the report, are ten years old, but they exist and then we’re sort of re-emphasizing them and we’re working through updating the new plans within the next year. This is like the entry point into the health care system. And you don’t know what’s happening. How the heck are you supposed to engage and do patient centered care, all the things that are supposed to be better and help your health outcomes and be free for you? How are you supposed to engage in that?

Tom Temin What was the methodology for the analysis that you did? Because other departments may want to say, Hey we’d like to have better language access to what we’re doing.

Melanie Fontes Rainer We examined the 25 plans submitted by every single HHS operating and staff divisions, including their provisions for areas of in language website, listserv and public outreach content, telephonic interpreter services and availability of program and benefit information, other languages, as well as funding for recipients to provide language access services. So we looked at that across the entirety of the department. We assessed and you’ll find in the report areas where we need improvement and we’re working on now, we again identified that some of these plans are from 2013 and the last time the department did this, which is ten years ago working to update those and refresh those. And I would say a big part of that that will be helpful is the rule that my office implements for the department. Section 1557 of the Affordable Care Act. This is a regulation. This nondiscrimination in health programs and activities on many bases including race, which could be limited English proficiency. And so this rule, again, was taken down in the previous administration. And so now we’re working to update that this will better align the role under the Affordable Care Act with recent developments in civil rights case law under Title six in Section 504 to better address these issues of discrimination so covered entities, whether it’s HHS itself or grants or service or, like you said, a hospital on Medicare Medicaid, that they will have notice for how the department is going to be enforcing the law and what kinds of steps they need to be taking here to improve. Things like having a coordinator, things like training your staff, right? Like all of those are things that we do and other civil rights laws that some of those efforts were scaled back here.

Tom Temin We’re speaking with Melanie Fontes Rainer. She’s director of the Office for Civil Rights at the Health and Human Services Department. How granular does this get? Because in some areas of the country you could have 15 different languages in a six block area. And also, what about the financial burden on small recipients, small health care providers who nevertheless might be in Medicare or Medicaid and so on to to have interpreters and to change their if they have websites or documentation, I guess written documentation people have to sign when they go to a medical facility. There’s a lot to it as a burden. And how does that balance?

Melanie Fontes Rainer Yeah, so part of that is the work that we’re doing with the Section 1557 rule. So we issued a proposed rule last fall and we received 85,000 comments. So it was quite popular. If we want to spin it positive, we’re looking at those. We’re working to finalize that rule as quickly as possible. But in that rule, we address some of these questions, right? We ask the question whether the current standard of the top 15 or so languages is enough, or, as you’re noting, there like places in the United States that are geographically diverse. There are places cities and counties where Los Angeles County. If we’re to look at an assessment of languages there, 15 is probably not enough. Because there is so many different communities there. And how do we work with that, both within the standards that exist within Medicaid, Medicare, but also make sure we’re being inclusive enough? And so that’s one of the things we’re contemplating in this final rule. And we got a lot of comments from all the major medical associations, health insurance companies, etc.. So something that we’ll be working on. And then also, absolutely, the cost burden is a is a real thing. And that’s why in the proposed rule, we in the past, the department had asked for covered entities, whether it’s a health insurance company or a provider or a hospital of a certain size to do a lot of this work themselves. But our proposed rule this past year, we actually are providing model notices. We’re proposing providing model notices in translated languages that will help lift some of the financial burden onto covered entities and also provide some of these services for them, which is a step that was proposed in the proposed rule. And that we got a bunch of comments on, I think a lot of positive comments from covered entities that that is helpful. And in trying to lift that burden, I think we’re also trying to take other steps across the department. Right. We have a language access coordinator we’re putting into place whether we can co-locate some resources across the department for smaller agencies. But I think all of those are things that will help the community because they’ll show A, it’s a priority, not an afterthought. And B, the department is providing resources for covered entities around the country knowing that not every hospital is giant and has other sources.

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Tom Temin And do you sense that there might be a technological help for a lot of this translation challenge? If you have to change your website or change documentation. There are tools now, software tools, artificial intelligence that do a lot better job of translating than they did, say, five or ten years ago. Is that something you envision people may be using?

Melanie Fontes Rainer That’s definitely something we got comments on in our proposed rule, some words saying, Hey, use artificial intelligence. That’s great. Some also are saying absolutely not. Don’t use artificial intelligence, because I think, as we all know, Google Translate, for example, doesn’t always get the verbiage right. And sometimes there are cultural differences in how we use words and there might be differences in how something is phrased. And that might mean that someone is not getting all of the information necessary. And so I think absolutely there has been advancements in the space, and I think we want to tread that line carefully to make sure that we’re not just saying, okay, fine you don’t have to have anyone on staff that can translate. You don’t have to have translation services. You can just use artificial intelligence. That’s absolutely not what we’re saying, but is certainly something we’re contemplating to figure out. Where is the line there to make sure that this isn’t a substitute for meaningful work in the space to provide meaningful access to care?

Tom Temin And what is the status of the rule now is still in the proposal stage. When are comments finalized and what’s your plan for getting the rule to the final point?

Melanie Fontes Rainer Comments period closed last October of 2022. So we are working on finalizing the rule and I believe the unified right agenda has it coming out in this fall of 2023, which is our goal.

Tom Temin And by the way, of those 85,000 comments, were they auto generated or did you get some real variety in the comments that you got?

Melanie Fontes Rainer I you know, I think typically with big rules like 1557, where people have some really strong viewpoints, we typically get a mixed bag. We got a number of large associations like AHIP and AMA and AJ, who weighed in and gave very thoughtful comments. But certainly on a civil rights role, you’re going to get letter writing campaigns where you get a lot of pro forma letters where people are just signing their names and telling you why you got it wrong or why you got it right. And I certainly we saw a lot of that, too. I can’t say whether or not they’re AI generated, but only the same.

Tom Temin But yes, it’s not a plebiscite anyway, with a rule. It’s really you’re supposed to evaluate them on their face value. And if 85,000 say the same 80,000 say the same thing, that can kind of kind of count as one versus the 5000. That said something else.

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Melanie Fontes Rainer I mean, we read every single comment, right? Regardless of they say the same or not like our staff is actually absolutely reading every single comment because we want to make sure we’re assessing this and getting the sense from the public of what we’ve done here. And so I think that’s just part of I think that’s always been part of this work.

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