Yesterday, on the day that 115,000 people who bought coverage in the federal marketplace lost coverage, the National Immigration Law Center filed two formal administrative complaints with HHS’s Office for Civil Rights alleging that the federally facilitated violated longstanding federal civil rights law and the Affordable Care Act’s anti-discrimination provisions. They request that OCR immediately investigate the claim and that HHS allow the 115,000 who were terminated have a right to re-apply for and continue to receive coverage. And also that HHS to conduct an effective outreach campaign aimed at rectifying the harm. NILC also filed a Freedom of Information Act (FOIA) request to learn more details about the communications with these 115,000 people.
Here, we answer a few basic questions about the complaints and FOIA request and provide links to additional information.
Who filed the complaints and what do they allege?
Both complaints, filed on behalf of Southeast Asian Mutual Assistance Associations Coalition and the Illinois Coalition for Immigrant and Refugee Rights, assert that the federally facilitated marketplace has not provided sufficient language access for limited English proficient individuals throughout the enrollment process. But, the particular focus of the complaint is on the notices sent to enrollees and their families about immigration and citizenship status inconsistencies and their imminent termination from coverage if they do not submit additional documents. They allege that notices were sent only in English and Spanish, and violate both the specific nondiscrimination provisions of the Affordable Care Act (S. 1557) and Title VI of the Civil Rights Act of 1964.
What do we know about the inconsistency notices and terminations that HHS sent?
While HHS and their contractors made attempts to let people with immigration and citizenship status data inconsistencies about the September 5 deadline, the complaints allege that the text of the notices that contained the specific instructions about what was at stake (losing coverage) and what to do to rectify it (send in documents), were provided only in English and Spanish. All notices did include “boilerplate” language translated into 15 languages that informed people of a right to an interpreter by calling and asking for a language line. However, advocates allege that the taglines were inadequate. In a written declaration, Priscilla Huang, Senior Director of Impact, at the Asian & Pacific Islander American Health Forum attested. “…the taglines were inadequate. Taglines should include information about any action a consumer needs to take and the consequences of failing to act. The taglines in these notices did not convey any urgency or even advise consumers that they needed to take action.”
What information is available about the English proficiency of people eligible for health insurance affordability programs?
The complaints both point to a recent report by HHS’s Office of the Assistant Secretary for Planning and Evaluation (ASPE) that shows that many people eligible for health insurance spoke languages other than English and Spanish and did not live in households with English-speaking adults. Specifically, of the 1.9 uninsured Asian Americans, Native Hawaiians, and Pacific Islanders eligible for health insurance affordability programs, ASPE noted that about 13 percent speak Chinese, 8 percent Korean, 8 percent Vietnamese, 3 percent Tagalog, and 14 percent other languages, and 31 percent live in a household without an English-speaking adult present.”
Both complaints, declarations, and a press release are available from NILC here.
Why did they also file a FOIA Request?
NILC also filed a FOIA request to gather more information about the 115,000 people who bought health coverage in the marketplace, who had been notified that they had not provided sufficient proof of their immigration or citizenship status and that their coverage would be terminated on September 30. They requested records such as the notice and termination language itself, open rates of electronic notices, languages the notice was translated into, how many of those who were terminated submitted documents and when, and more. The full list of requested documents and records are available here. Advocates had requested this information from HHS for many months, in an effort to make suggestions for how to improve the language and the process for notifying enrollees and their families.