THE TORCH: CONTENTS
May 8, 2024

Ten years after the opening of the health insurance marketplaces created under the Affordable Care Act (ACA), the Centers for Medicare & Medicaid Services (CMS) has published regulations that end the arbitrary exclusion of DACA recipients from access to affordable, quality health care. This overdue step is a critical victory for equitable access to health care, and we applaud the Biden administration for taking this essential step.

The ACA makes both U.S. citizens and lawfully present noncitizens eligible to obtain health coverage and the subsidies that make it affordable through HealthCare.gov and state-based marketplaces like Covered California. Regrettably, shortly after DACA was established, CMS issued regulations excluding DACA recipients from the ACA’s definition of “lawfully present.” In addition to making DACA recipients ineligible for marketplace plans and subsidies, the agency made them ineligible for Medicaid and Children’s Health Insurance Program (CHIP) coverage in states that have exercised the option to cover lawfully residing children and pregnant people. As a result of these exclusionary policies, DACA recipients have faced unmet health care needs and challenges for years – including crushing medical debt.

In April 2023, the Biden administration signaled that it would take steps to address these health disparities. Published just over one year later, the final rule will finally end the exclusion of DACA recipients from the definition of “lawfully present,” making them eligible for coverage and income-based financial assistance through the health care marketplaces. In states that have implemented the Basic Health Program (currently New York and Minnesota), they will be eligible for that program, depending on their income.

The regulations further clarify eligibility for certain other immigrants, including people granted Special Immigrant Juvenile Status, children seeking asylum or other humanitarian relief and applicants for adjustment to Lawful Permanent Resident status.

DACA recipients will be eligible for ACA enrollment November 1, with coverage beginning as soon as this December. This change in eligibility will require an investment in outreach and enrollment assistance from the U.S. Department of Health and Human Services (HHS) and other entities to maximize the number of people who gain coverage.

While the final rule is an important step in the right direction, there are still barriers and challenges that need to be addressed., These include the ineligibility of immigrant survivors of violence seeking U visas and deferred action, as well as the exclusion of DACA recipients from eligibility for Medicaid and CHIP in states that have elected to open those programs to lawfully residing immigrant children and people who are pregnant.

The expansion of ACA coverage to DACA recipients is a hard-fought milestone in the larger fight for health for all, but CMS can do more to expand access to critical health care coverage. We encourage President Biden, HHS, and CMS to continue expanding equitable access to health care for everyone who lives in and contributes to this country.

THE TORCH: CONTENTS
April 30, 2024

The U.S. Department of Health and Human Services (HHS) Office for Civil rights (OCR) has posted its finalized regulation updating Section 1557 of the Affordable Care Act (ACA), also known as the Health Care Rights Law. The final rule strengthens antidiscrimination requirements for recipients of federal health funding and in federal health programs, including prohibiting discrimination on the basis of race, color, sex, age, disability, and national origin. These changes will improve the quality and safety of health care for immigrants, women, LGBTQ+ communities, and individuals with disabilities. In particular, the new regulation strengthens requirements that health entities provide meaningful access to their programs for people with limited English proficiency (LEP).

Covered Entities – The final rule applies to all entities that conduct or administer health-related programs or activities and receive financial assistance from HHS for any part of those activities. It clarifies that the receipt of any type of federal health funds requires compliance, extending Section 1557’s civil rights requirements to health care providers that accept Medicare Part B. The rule further clarifies that all aspects of an entity’s health activities are subject to its provisions if the entity receives federal funds for any part of them. For example, all activities by an issuer that sells plans on health insurance marketplaces like Healthcare.gov are covered, including sales of plans off of the marketplaces. It also prohibits discrimination in telehealth and by subcontractors of federal funds recipients, such as insurance agents and brokers.

Access to Language Services and Qualifications – The original Obama administration Section 1557 regulation required that covered entities make translation and interpretation services by qualified interpreters and translators available to people with limited English proficiency, which remained true under the Trump rule. The new policy adds helpful definitions of qualified interpreter, qualified translator and qualified bilingual/multilingual staff, ensuring that the provision of these services is competent. For example, the rule states that being bilingual alone does not mean an employee is qualified to be an interpreter and that interpreters must be familiar with any specialized vocabulary and terms. It also clarifies that companions are also entitled to these services, such a minor child’s parent with LEP.

Machine Translation – With the proliferation of tools like Google Translate, and the avalanche of artificial intelligence technology, the rule makes clear that machine translation alone is generally insufficient to meet civil rights requirements. Any use of these tools must be reviewed by a qualified human interpreter when the underlying text is critical for meaningful access to an activity or program for people with LEP.

Required Written Procedures – The rule finalizes requirements that covered entities must have written language access policies and procedures, including how employees identify whether someone has LEP and how they can obtain qualified language services. Employees must be trained in these procedures, and covered entities with 15 or more employees must identify a 1557 coordinator on staff.

Civil Rights Notices – Covered entities must take certain steps to inform individuals about their health care civil rights. These include posting public notices of nondiscrimination and including notices of availability of language and disability services in significant documents. All notices about the availability of language assistance must be provided in the top 15 languages in the state or states in which the covered entity operates. For example, the notice of availability must be included on applications for benefits, terminations of eligibility, consent forms, discharge papers, medical bills, and explanations of benefits.

Intersectional Discrimination – The final rule acknowledges that individuals may be discriminated against based on multiple identities, such as being Black and LEP, and that these complaints can be resolved through a single grievance process and with the same enforcement mechanisms. While OCR declined to determine whether discrimination based on immigration status violates the statute, the preamble does contemplate that differential treatment based on suspected immigration status could be a violation.

Compliance Test – The final rule establishes a two-factor standard for OCR to use in assessing whether an entity has complied with the law should it come under investigation, considering the importance of the program and whether the entity has effective written procedures.

Private Right of Action – While HHS declined to specifically adopt regulatory text stating that any individuals may privately litigate any type of discrimination claims under Section 1557, the preamble of the final rule recognizes that courts have consistently found this to be the case.

Effective Date – While the rule will be broadly effective on July 5, 2024, covered entities are given six months to designate 1557 coordinators and a year to develop their policies and procedures. They are also given a year to start including notices of the availability of language assistance in applicable documents. See the table under question 4 of the HHS FAQ for more details.

Implementation
OCR indicates in the preamble of the rule that it may considering issuing additional guidance in the future, such as how to assess whether employees meet the requirements to be bilingual, clearer definitions of what it looks like to provide “meaningful access” to people with LEP, and standards for using machine translations. It also states that the final rule does not apply to health activities by other agencies, leaving a gap that may be filled by action by agencies that implicate health care like the Social Security Administration, Internal Revenue Service, and Veterans Administration.

We will now look to the administration for a robust implementation of these important new requirements. There will be consequences for health equity if individuals are unaware of their rights or if health care entities fail to comply with them. No one should face barriers to accessing health care because of their language and every person should understand their right to language access.

THE TORCH: CONTENTS
March 25, 2024

On January 31, 2024, the U.S. Department of Homeland Security (DHS) published the updated U.S. Citizenship and Immigration Services (USCIS) Fee Schedule. This final rule published in the Federal Register aimed to adjust certain benefit request fees and establish exemptions for specific humanitarian categories. Additionally, DHS responded to public comments offered to the USCIS fee schedule proposal released in January 2023.

Amidst many other members of the public, NILC filed a public comment in response to the January 2023 fee schedule proposal by USCIS but focused on how the proposed changes would affect low-income immigrants, particularly those without lawful immigration status. NILC’s public comment made the following requests: (1) Reduce the cost of applying for or filing for relief for low-income immigrants; (2) Clarify when biometric fees are warranted; (3) Reconsider fee increases for Form I-765 applicants; (4) Reconsider fee increase for family sponsorship; (5) Provide opportunity for more fee exemptions and waivers while expanding the already existing exemptions for U-visa applicants; (6) Allow individual determinations for fee waivers; and (7) Clarify communication regarding payment changes before they go into effect. Thankfully USCIS adopted several of these recommendations.

Five things to know about the rule:

1. The new fees are expected to go into effect April 1, 2024. Applications and petitions postmarked on or after April 1, 2024, must include the new fees or USCIS will not accept them. Here is the link to the USCIS fee calculator: https://www.uscis.gov/feecalculator
2. There will be a $50 discount if you apply online. The final rule offers a $50 discount for certain forms filed online with the intent of incentivizing online filing. That said, USCIS continues to permit paper filings in order to address the concern of accessibility for low-income immigrants with limited access to a computer and/or the internet to file for relief online.
3. The fee to request work authorization is going up. DHS explained that the Form I-765 fee increased, but by less than the originally proposed amount in the proposed rule. Form I-765 currently has a filing fee of $410, which will increases in USCIS’s final rule to $470 when filed online or $520 when filed on paper. For example, the total cost associated with requesting DACA is going up as a result.
4. Fee exemptions and fee waivers are available for certain forms. USCIS expanded fee exemptions for various processes including U-visa, T-visa, VAWA, SIJs applications. Additionally, there’s a fee reduction provided for naturalization allowing for payment of half of the regular Form N-400 fee for an applicant with household income at or below 400% of the Federal Poverty Guidelines (FPG) (previously set at 200%). USCIS may grant a fee waiver due to inability to pay or receiving a means tested benefit but added that a means tested benefit to a child can be considered to show parent’s inability to pay. As for individual determinations (e.g. not tied to filing a specific Form), DHS responded by stating that the Director of USCIS can provide exemptions from or waive any fee for a case or specific class of cases if the director determines the action to be in the public interest and the action is consistent with other applicable law.
5. Check the USCIS website before filing. USCIS conducts a review every two years of their fees and in the final rule USCIS reserves the right to raise fees due to inflation so we could see additional fee changes before their next review. However, any changes or specifications such as what form edition date to submit, will be on their website. The final rule provides for a 30 day advance public notification requirement before a payment method changes. To avoid delays caused by rejected forms or payments, check the USCIS website before filing.

For more information on the fee rule itself, please see USCIS’s Frequently Asked Questions on the USCIS Fee Rule.

For more information on the effects of the fee rule, please see ILRC’s New USCIS Fee Rule: An Update on USCIS Filing Fees and AILA’s Featured Issue: USCIS Final Rule Adjusting Its Fee Schedule.

THE TORCH: CONTENTS
November 6, 2023

In August, NILC documented the dire need to address health disparities through our report, Expanding Health Care Access for Individuals with Limited English Proficiency (LEP). In the past month, two bipartisan bills have been introduced in Congress aligned with the report’s proposed policy solutions. These bills, along with other developments in Congress, demonstrate the potential for real progress on this important issue.

Most recently, Rep. Michelle Steel (R-CA), along with three House Republicans and nine Democrats, introduced the Supporting Patient Education and Knowledge (SPEAK) Act of 2023. This legislation, supported by an array of health consumer and industry organizations, including the American Medical Association and Healthcare Leadership Council, would tackle the issue of disparities in telehealth access for people with LEP. For example, a recent secret shopper study found that English speakers in California were significantly more likely to be able to obtain a telehealth appointment than Spanish speakers. The SPEAK Act would bring together stakeholders in a federal task force to identify the barriers and solutions to such disparities.

In September, Reps. Young Kim (R-CA) and Grace Meng (D-NY) introduced the Health Communication Access and Resources for Everyone (Health CARE) Act. Similarly supported by health care industry and consumer groups, this bill would establish a universal symbol to convey the availability of language services in print, web, and medical office settings. It builds on funding Congress allocated to the Department of Health and Human Services for Fiscal Year 2023 for the concept of a language access symbol, akin to Australia’s National Interpreter Symbol.

These new bills build on additional work in Congress to address language access and health. In 2021, Congress unanimously passed Rep. Young Kim and Rep. Hakeem Jeffries’ (D-NY) legislation to require the Department of Veterans Affairs to translate its fact sheets into twelve languages. More recently, House health committees unveiled bipartisan legislation to improve health care price transparency, including provisions to require health care entities to make their prices available to people with LEP.

Combined with the Biden Administration’s renewed commitments to language access, along with the heightened public awareness of these disparities thanks to systemic failures during the COVID-19 pandemic, the federal government has a rare opportunity to advance concrete and widely supported policies in this area. Congress should act now to improve access to health care for people with LEP. Waiting will only further disparities, hurting immigrant families and communities of color through needless systemic failures.

THE TORCH: CONTENTS By Alejandra Caballero Pinedo, Andy Flores, and Kathleen Hoang

August 15, 2023

The FirstGEN Fellows Program connects first generation college students with legal organizations, including the National Immigration Law Center, Asian Americans Advancing Justice, and the Lawyers’ Committee for Civil Rights Under Law. Throughout ten weeks in a paid summer internship, we gained firsthand experience in social justice careers, while developing our own personal professional capacity through weekly seminars, discussions, and mentorship. Continue reading to find out more about this year’s fellows and their summer!

Alejandra Caballero Pinedo, rising senior at Trinity University:

As a FirstGEN fellow working with the National Immigration Law Center, I have greatly benefited from being immersed in a space where I constantly learn about the interactive dynamic of litigation, policy, and advocacy. At NILC, I supported the policy and advocacy department by adding to the organization’s institutional knowledge through research, crafting a factsheet for bipartisan congressional review on a bill relating to telehealth language access, taking notes on congressional hearings, and assisting in the review of the DACA campaign strategy. Through it all, one of the greatest gifts I have gained from this program is the renewed faith I have found within myself to accomplish the unexpected.

The support from my supervisors and the staff members at NILC has been transformative. I have learned to whole-heartedly believe in the trust that has been placed in me. Additionally, my contributions have been welcomed and celebrated which has led me to feel uplifted as a first-generation college student, fellow, and colleague. Conversations in DACA team meetings and FirstGEN fellows weekly meetings have been instrumental to my intellectual growth and in developing myself in a professional sphere. Not only was this summer internship empowering and uplifting, but my knowledge base on career paths significantly expanded. I was able to discover different potential career paths in the social justice, policy, advocacy, and legal fields.

Nearing the end of this fellowship, I am beyond proud of my intellectual, personal, and professional growth. Additionally, I embrace the crucial role that NILC and the FirstGEN Fellows program have played in planting these seeds of growth within me.

Andy Flores, recent graduate from University of Mississippi:

As a FirstGEN fellow with the Lawyers’ Committee for Civil Rights Under Law this summer, I developed a rich and intimate understanding of how racial justice advocacy works behind-the-scenes. In my first few weeks, my team entrusted me with facilitating local rallies, shaping our national advocacy strategy, and generating key materials for our Educational Opportunities Project. I was also consistently invited to share my perspective on weighty issues, such as the team’s affirmative action litigation before the Supreme Court. As the weeks progressed, Wednesday meetings with the FirstGEN Fellowship cohort were a grounding opportunity to share in community alongside interns who understood the first-gen experience. It was replenishing. Both personally and professionally, I felt empowered to show up as my full self and make substantive contributions.

This summer also demystified the legal field for me and clarified what my career could look like as a future first-gen lawyer. Too often, it can be difficult to connect with attorneys, understand their day-to-day role, and benefit from their wisdom. As a FirstGEN Fellow, I was consistently surrounded by brilliant and welcoming professionals who were dedicated to public service. I had one-on-one meetings with someone new every week, and every time, I learned something new about myself. I now feel more prepared than ever to apply to law school and pursue a career as a civil rights litigator.

Kathleen Hoang, rising junior at Columbia University:

As a FirstGEN fellow with Asian Americans Advancing Justice | AAJC, I have not only delved into projects related to radicalized state histories and data disaggregation, but I’ve also had the privilege of meeting amazingly talented staff members who shared their rich educational and career trajectories with me. Through conversations and mentorship, I gained invaluable insights into the professional social justice world and learned how to navigate challenges with resilience and grace. Their encouragement and willingness to invest time in my growth meant the world to me.

I walk away from AAJC inspired, knowing that as long as I have the intention to leave the world a little bit better, my path will unfold before me. The terrifying, infinite possibilities of my career stand before me and yet I feel more ready and excited than ever before to take what I learned at AAJC into my work with human rights.

We are so grateful for this fellowship, all the invaluable skills we gained professionally, and the self-confidence we built through generous mentorship from staff. We encourage everyone to apply to next year’s program and join the FirstGEN Fellowship.

THE TORCH: CONTENTS By Laiba Waqas & Ben D’Avanzo 

August 9, 2023

In March 2023, after a three-year pause, states resumed terminating the eligibility of Medicaid recipients. These terminations signaled the restart of eligibility redeterminations, which had been halted during the COVID-19 pandemic. Enrollees who face the termination of their eligibility are already up against significant administrative barriers, but people with limited English proficiency (LEP) are more likely to lose Medicaid coverage during this unwinding process even if they remain eligible for Medicaid due to language barriers and ineffective communication. States have an opportunity to remove these barriers and avoid worsening access to in-language explanations and applications so that everyone, regardless of how much money they have, where they were born, or what language they speak, can access the health care they need to thrive.

Under federal civil rights laws, including Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act states have obligations to ensure that individuals have meaningful access to their federally funded programs, including Medicaid. A recent letter from Department of Health and Human Services Office of Civil Rights (HHS OCR), emphasized that states must abide by language access requirements during the unwinding to prevent individuals with LEP from losing coverage. The Centers for Medicare and Medicaid Services has reminded states that regulations require state Medicaid programs to provide in-language oral interpretation and written translations to people with LEP Given that 89 percent of people with LEP are people of color, failure to provide these protections will exacerbate racial health disparities. To identify trends of how states provide information for obtaining language assistance through call centers and on state Medicaid home pages, we analyzed how people with LEP may try to initiate their Medicaid redetermination. Our analysis of call centers and Medicaid websites across all 50 states uncovered some concerning trends. 

Medicaid Call Centers

We looked at whether state Medicaid call centers provide immediate access to in-language assistance upon connection, and, if so, in which languages. For example, to ensure a call line is accessible, a phone menu should start by asking for the caller’s language preference and may ask them to press a number to indicate a specific language. However, nine states: Arizona, Hawaii, Michigan, Mississippi, Montana, North Carolina, Pennsylvania, Rhode Island, and Virginia failed to offer immediate language options and instead began with long English prompts, making their systems potentially unusable by someone with LEP.

Nineteen states’ phone menus provided prompts for people who speak only English and Spanish, not even offering an “other” option. For the 38 percent in the U.S. with LEP who don’t speak those languages, this obstacle makes it unclear how they are supposed to obtain assistance with their Medicaid renewals.

Only 13 states, plus the District of Columbia, had specific language options on their phone menu beyond English, Spanish and a general “other language” option. However, in some states, these language options were stated in English rather than using the identifying word in the language itself. (“Spanish” instead of “Español”)

State Medicaid Websites

Because people with LEP may first go to their state’s Medicaid website for information on renewals, we looked to see if there was any information on how to access in-language information from those homepages.

Alabama, Alaksa and Idaho all failed to provide any information on how to access language services on their Medicaid home pages or application page. Most other states had an option to translate the website, including the renewal application, into Spanish; however, in 18 states, other languages were only accessible through Google Translate, which is often riddled with grammar and syntax errors that reduce the accuracy of information.

Thirteen states, and DC, had translated resources and informational flyers regarding Medicaid application and free translation services on their website; these translations were available in anywhere from two to fifteen languages. Most states had drop-down menus, identified only in English, from which language services could be accessed if available. Notably, only nine states and DC had taglines or footers that either linked to a translated version of the entire website or opened additional resources and information in that language. While some states may have additional information in-language on portions of their website, they were not clearly accessible from the home page.

Many states have failed to abide by the best practices that HHS OCR has communicated, putting themselves at risk of failing to comply with civil rights and Medicaid enrollment requirements. States must ensure people with LEP can access language assistance to mitigate Medicaid coverage gaps and losses.

Recommended Best Practices for States

From the findings above, many states have a long way to go to ensure that people with LEP can access the tools and information they need to renew Medicaid. Our analysis uncovered some important steps that states can take to improve language access:

Call centers should:

• Provide unique phone numbers for speakers of different languages, bypassing the challenges of complex phone trees, as California does in 12 languages.
• Immediately ask callers for their language preferences, using the in-language terminology for the offered languages, as Oregon does for 6 languages.
• Remove lengthy English prompts prior to asking a customer’s language, as consumers must navigate in Arizona, Hawaii, and Montana.

Websites should:

• Provide language access options that use professional translation services. The proposed revisions to Section 1557 regulations note that unreviewed machine translations do not count as meaningful access.
• Place language translation options in a conspicuous location on the website rather than buried within an English drop-down menu. For example, Washington state offers Spanish at the top of the page and taglines in 15 languages at the bottom of the website.

States should:

• Utilize the language preference data that all Medicaid applications collect to identify and regularly publish demographic trends during the unwinding, as Washington and Oregon do. Without data, we cannot truly know how big the coverage loss disparities will be for people with LEP.

States must provide meaningful language access to ensure that no one else loses their health care because of ineffective and inaccessible communications. CMS and OCR should provide oversight and consider pausing renewals in states that do not. No one should be denied access to health care coverage because of the language they speak.

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Laiba Waqas is a NILC Summer 2023 Legal Intern.

THE TORCH: CONTENTS By Gabrielle Lessard

May 5, 2023

The senseless exclusion of immigrants with Deferred Action for Childhood Arrivals (DACA) from Affordable Care Act (ACA) coverage is finally ending. The Centers for Medicare and Medicaid Services (CMS) has published a proposed rule that would modify the definition of “lawfully present” used to determine eligibility for ACA health plans and certain other health care programs.

The proposed regulations would make DACA recipients eligible:

• To purchase plans, and receive income-based subsidies, on healthcare exchanges like Healthcare.gov,
• To participate in Medicaid or CHIP coverage for children and/or people who are pregnant in many states, and
• To enroll in Basic Health Programs in certain states (currently New York and Minnesota).

Currently, people who have deferred action under categories other than DACA are considered lawfully present for purposes of the three programs listed above. In publishing the proposed regulations CMS has recognized that it is not required to treat DACA recipients differently than other recipients of deferred action, and that doing so is contrary to the purposes of DACA and the ACA.

The proposed regulations also incorporate important clarifications and technical corrections. The proposal clarifies that people who received special immigrant juvenile status (SIJS) are eligible for the three programs listed above. It also eliminates a 180-day waiting period for children under age 14 applying for certain kinds of humanitarian relief, including asylum.

The proposed regulations incorporate a November 1, 2023 effective date, which coincides with the beginning of the ACA open enrollment period. There is no real justification for making DACA recipients continue to wait for access to affordable coverage. As people newly eligible for ACA coverage, DACA recipients would be eligible for a ‘special enrollment period’ that enabled them to enroll outside of open enrollment.

CMS is accepting public comments on the proposed regulation through June 23, 2023. Check back on NILC’s website for additional news and resources about the regulation as it moves forward.

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Gabrielle Lessard is a Senior Policy Attorney at NILC.