In November 2023, the U.S. Department of Health & Human Services (HHS) released a sweeping department-wide Language Access Plan with the goal of ensuring people with limited English proficiency (LEP) and people with disabilities have greater access to its services.  To effectuate its policy goal, making sure health programs and care is available and accessible for individuals in their native languages, and effective communications for persons with disabilities, HHS agencies released several new regulations and subregulatory guidance.  Here are the three policies we think Therapy Brands customers ought to know. 

1. HHS Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance Final Rule. 

This rule applies broadly to any program or activity receiving federal financial assistance from HHS. This includes a wide range of services beyond healthcare, such as social services and educational programs. It specifically addresses nondiscrimination on the basis of disability. 

A key provision of this rule includes requirements for web and mobile accessibility a recipient provides. Specifically, must comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1. This requirement is effective May 11, 2026 for a recipient with fifteen or more employees and May 10, 2027 for a recipient with fewer than fifteen employees. However, HHS also provided a myriad of exceptions to compliance for recipients, including the following: 

• Excepts if the recipient can demonstrate that compliance would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.  

• Excepts archived web content; preexisting conventional electronic documents; content posted by a third party; individualized, password-protected documents or otherwise secured conventional electronic documents; and preexisting social media posts.  

• Allows for alternative designs, methods, or techniques if they result in substantially equivalent or greater accessibility and usability of the web content or mobile app. 

• Excepts if the recipient can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the recipient’s web content or mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use: 

• • Access the same information as individuals without disabilities; 

• • Engage in the same interactions as individuals without disabilities; 

• • Conduct the same transactions as individuals without disabilities; and 

• • Otherwise participate in or benefit from the same programs and activities as individuals without disabilities. 

2. Centers for Medicare & Medicaid Services (CMS) Nondiscrimination in Health Programs and Activities. 

This final regulation is more narrowly focused on health programs and activities administered by CMS, including Medicare (including Part B providers), Medicaid, and the Children’s Health Insurance Program (CHIP).  However, it is broader in purview, and addresses discrimination on the basis of race, color, national origin, sex, age, or disability.  Some interesting call outs in this rule include the following requirements for covered entities: 

• Must ensure accessibility of information and communication technology, including electronic health records (EHR) and patient portals for individuals with disabilities unless doing so would result in undue financial and administrative burdens or a fundamental alteration in the nature of the health programs or activities. 

• • In such a case, an alternative should be pursued so that to the maximum extent possible, individuals with disabilities receive the benefits or services of the health program or activity provided by the covered entity. 

• Take steps to identify and mitigate discrimination when they use AI and other forms of decision support tools for care. 

• Create and implement the following: 

• • Nondiscrimination policy; 

• • Notice of nondiscrimination; 

• • Proactive notice of availability of language assistance services and auxiliary aids and services; 

• • Staff training on nondiscrimination; 

• • Grievance procedures; 

• • Language access procedures; 

• • Effective communication procedures; and 

• • Reasonable modification procedures. 

• Health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency, and individuals with disabilities. 

• • However, the agency did not explain how exactly health care providers could comply with this requirement at this time.  Instead, it kicked the can down the road saying it would follow up with “technical assistance and clarifying guidance.” 

3. Substance Abuse & Mental Health Services Administration’s (“SAMHSA”) new Language Access Plan. 

Part of SAMHSA’s plan aims to ensure that grantees (e.g., CCBHCs) understand and comply with their obligations to provide language assistance services. Grantees should expect increased compliance monitoring in this area, specifically, we recommend preparing for the following: 

• Have documented plans for serving persons with limited English Proficiency (“LEP”) and persons with disabilities that ensure their programs and activities  

• Include budget lines in proposals for providing language assistance services 

• Annually report the amount and type of language assistance services provided to their consumers and the languages in which the services were provided 

• Submit language access procedures or policies with their applications and proposal, including: 

• • A quality control and improvement plan for language assistance services; 

• • Notices of the availability of language assistance services at no cost; 

• • Vital program documents in the top languages spoken by the communities they serve; and 

• • Demonstrate the ability to serve communities with LEP and people with disabilities.  

• Questions from SAMHSA about language accessibility and meaningful communication in onsite program reviews, questionnaires, and surveys designed to determine compliance with grant obligations.