On September 14, 2016, the Department of Health and Human Services (HHS) issued FAQ guidance addressing the tagline requirement under the Affordable Care Act's (ACA's) nondiscrimination rules for health programs and activities (Section 1557). The FAQs are coordinated with an HHS table containing estimates of the top 15 languages spoken by individuals with limited English proficiency (LEP) in the 50 states, District of Columbia, and US territories. The table ranks the languages, with languages estimated to be spoken by the most individuals with LEP ranked first.

As background, Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities (see Practice Note, Nondiscrimination in Health Programs and Activities Under the ACA (Section 1557)). Insurers that receive federal financial subsidies must comply with Section 1557 implementing regulations, which were finalized earlier this year, for all of their health plans, including when the insurer acts as a third-party administrator (TPA) for an employer-sponsored health plan. The nondiscrimination rules include a tagline requirement, under which covered entities must post taglines in the top 15 languages spoken by individuals with LEP statewide (45 C.F.R. § 92.8(d)(1)). A tagline is a short statement written in a non-English language that indicates the availability of language assistance services free of charge (see Practice Note, Nondiscrimination in Health Programs and Activities Under the ACA (Section 1557): Tagline Requirement).

The FAQs address various Section 1557 issues, including:

Under the final regulations, Section 1557 covered entities must post taglines in at least the top 15 languages spoken by individuals with LEP of the relevant state(s). An individual with LEP is someone:

In the FAQs, HHS indicates that covered entities may use information in the related table to satisfy the translated tagline requirement. For Georgia, for example, the table lists the following top 15 languages: Spanish, Vietnamese, Korean, Chinese, Gujarati, French, Amharic, Hindi, French Creole (Haitian Creole), Russian, Arabic, Portuguese, Persian (Farsi), German, and Japanese. However, covered entities are not required to use the table. They may instead refer to other sources if they have a reasonable basis for doing so, taking into account the data's currency, reliability, and stability. Other sources may be used even if the list of languages:

Also, a covered entity may include taglines in additional languages (that is, beyond the required 15) to increase the breadth of national origin populations informed about the availability of language assistance services.

In addition to satisfying the tagline requirement, covered entities must take reasonable steps to provide meaningful access to individuals with LEP to comply with Section 1557. This may require providing language assistance services (for example, oral interpretation and written translations) in languages not shown on the table. Regarding the meaningful access requirement, see Practice Note, Nondiscrimination in Health Programs and Activities Under the ACA (Section 1557): Meaningful Access for Individuals with Limited English Proficiency.

Some languages included in the table have multiple dialects. As a result, for certain languages with more than one dialect, HHS translated its sample taglines and other materials into the dialects. For Spanish, by way of example, materials are translated into neutral Spanish for the US.

HHS acknowledged that future changes in the LEP population may affect the languages that are ranked in the top 15 for the states, the District of Columbia, and the US territories. According to the FAQs, as new data becomes available HHS will determine if and when its list of languages must be updated (as required under implementing regulations).

When additional languages are warranted, HHS will make available in the non-English language the:

Regarding these requirements, see Practice Note, Nondiscrimination in Health Programs and Activities Under the ACA (Section 1557): General Notice, Tagline, and Nondiscrimination Statement.

The HHS table offers Section 1557 covered entities a starting point in determining the top 15 languages for a given jurisdiction. Also, in finalizing its regulations last May, HHS indicated that covered entities that serve individuals in multiple states may aggregate the number of LEP individuals in those states to determine the top 15 languages.

A listserv email that accompanied the FAQ guidance indicates that covered entities must post Section 1557 notices of nondiscrimination and taglines beginning on October 17, 2016 (that is, 90 days from the final regulations' July 18, 2016 effective date). In addition, HHS's website contains a sample notice of nondiscrimination (general notice), statement of nondiscrimination, and taglines for use in complying with the Section 1557 requirements. Translated versions of these documents and taglines also are available on HHS's website.