2023-07115.pdf

providers. The commenter also stated that it is important that MA organizations, cost plans, and Part D sponsors adequately inform their enrollees of the ability to access interpreters and/or with written materials in their primary language or an accessible format. Finally, the commenter indicated that CMS needs to ensure the competency of interpreters. Another commenter encouraged CMS to ensure access to a translation service that helps address gaps between patient and provider fluency by continuously evaluating the quality of interpreters. Response: We appreciate the commenters perspectives on this issue. These comments are outside the scope of this rulemaking to address the requirement of MA, cost, and Part D plans to provide written materials to enrollees on a standing basis in any non-English languages that is the primary language of at least 5 percent of the individuals in a plan benefit package service area and in accessible formats. However, we note that 45 CFR 92.101(b)(2) discusses language assistance services requirements and requires that services must be provided free of charge, be accurate and timely, and protect the privacy and independence of individuals with LEP. Section 92.101(b)(3) also requires that services be provided by an interpreter who adheres to generally accepted interpreter ethics principles, including client confidentiality; has demonstrated proficiency in speaking and understanding at least spoken English and the spoken language in need of interpretation; and is able to interpret effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222232 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations 125Refer to https://www.resourcesforintegratedcare.com/language_preferences/. 126Refer to https://aspe.hhs.gov/pdf-report/ report-congress-social-risk-factors-and- performance-under-medicares-value-based- purchasing-programs. using any necessary specialized vocabulary, terminology and phraseology. In addition, 45 CFR 92.102 discusses effective communication for individuals with disabilities. It requires entities to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in such programs and activities. Section 92.101(b) also requires that a recipient or State exchange provide appropriate auxiliary aids and services, including interpreters and information in alternate formats, to individuals with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question. In addition, we note that, per  422.2267(e)(31) and 423.2267(e)(33),MA plans and Part D plans are requiredto include a multi-language insert withall required materials noting that freeinterpreter services are available inSpanish, Chinese, Tagalog, French,Vietnamese, German, Korean, Russian,Arabic, Italian, Portuguese, FrenchCreole, Polish, Hindi, Japanese and anyadditional languages that meet the 5percent service area threshold. Inaddition,  422.2267(e)(35) and423.2267(e)(36) requires a statementabout the availability ofaccommodations for persons withspecial needs, including a telephonenumber; this notice must be indisclaimer form or within the body ofthe material on any advertisement ofinvitation to education and marketingevents.Comment: A few commenters requested that CMS extend the standing basis proposed rule to interpreter services. They stated that if an enrollee with LEP has requested an interpreter for live, real-time communication (for example, over the phone or in connection with a visit to an in-network provider), the enrollee should have the option to establish a standing order for interpretation. They also indicated that the same rule should apply to CMS itself. When requested by any enrollee who is LEP, CMS should as a matter of course note in the enrollees Medicare record a standing order for interpretation and the language required, to be used for both incoming and outgoing calls. Response: We thank the commenters for their input. While not addressed in this final rule, CMS did propose new standards governing interpretation services furnished in connection with plan call centers at section III.K. of the proposed rule (87 FR 79512). That proposal would require MA organizations and Part D sponsors to use interpreters that adhere to generally accepted interpreter ethics principles, including confidentiality; demonstrate proficiency in speaking and understanding at least spoken English and the spoken language in need of interpretation; and interpret effectively, accurately, and impartially, both receptively and expressively, to and from such language(s) and English, using any necessary specialized vocabulary, terminology, and phraseology. We did not propose to require provision of interpreter services on a standing basis nor did the proposed rule address Medicare interpreter services. As a result, this comment is out of the scope of the regulation. We learned from oversight activities, enrollee complaints, and stakeholder feedback that enrollees often must make a separate request each time they would like a written material in an non-English language or need materials in alternate formats. Since our experience was based on feedback about written materials, we focused our proposal on written materials. We will consider extending the standing basis policy to interpreter services for future rulemaking. After considering the comments received and for the reasons outlined in our proposed rule and responses to comments, we are finalizing the proposed changes to re-designate current paragraph (a)(3) in  422.2267 and 423.2267 to paragraph (a)(5) and to adopt a new paragraph (a)(3) in both regulations to require plans to provide required materials to enrollees on a standing basis in an non-English language or accessible format upon receiving a request for the materials in a non-English language or accessible format or when otherwise learning of the enrollees primary language or need for accessible format. 2. Require FIDE SNPs, HIDE SNPs, andApplicable Integrated Plans ToTranslate Materials Into the MedicareTranslation Standard Plus AdditionalMedicaid LanguagesOver 1.8 million individuals dually eligible for the Medicare and Medicaid programs speak a language other than English at home or do not speak English fluently.125In addition, dual eligibility is a strong predictor of poorer outcomes in an array of Medicare programs,126 and dually eligible beneficiaries are far more likely than other Medicare beneficiaries to be from racial or ethnic minority groups (48 percent vs. 22 percent). Many dually eligible beneficiaries have low health literacy yet need to navigate a more complex system of coverage than non-dually eligible beneficiaries. Per the definition of specialized MA plans for special needs individuals in  422.2, all SNPs must be MAPDs thatcomply with both Part 422 and Part 423requirements. Sections 422.2267(a)(2)and 423.2267(a)(2) require dual eligiblespecial needs plans (DSNPs), like allother MAPD plans, to translatematerials into any non-English languagethat is the primary language of at least5 percent of the individuals in a planbenefit package service area. Weproposed to amend  422.2267 and423.2267 with a new paragraph (a)(4)that requires that FIDE SNPs and HIDESNPs, as defined at  422.2, andapplicable integrated plans (AIPs), asdefined at  422.561, translate allMedicare materials listed in 422.2267(e) and 423.2267(e) into anylanguages required by the Medicaidtranslation standard as specifiedthrough their capitated Medicaidmanaged care contract in addition to thelanguage(s) required by the Medicaretranslation standard at  422.2267(a)(2).Generally, we expect that the Medicaidtranslation requirements would be theregulatory standard at  438.10;however, a State may impose a higheror more stringent translationrequirement on its Medicaid managedcare plans than is required by  438.10,so we believe referring to the capitatedMedicaid managed care contract ratherthan  438.10 is appropriate for thisproposed new requirement. Specifically, 438.10(d)(3) requires that entitiesmake written materials that are criticalto obtaining services available in theprevalent non-English languages in theservice area. Section 438.10(a) definesprevalent as a non-English languagedetermined to be spoken by a significantnumber or percentage of potentialenrollees and enrollees that are limitedEnglish proficient. Section 438.10(d)(1)requires that the State establish amethodology for identifying theprevalent non-English languages spokenby enrollees and potential enrolleesthroughout the State. Under thedefinitions for FIDE SNP, HIDE SNP,and AIP, each of these types of plan hasa companion or affiliated Medicaidmanaged care plan, which would itselfbe subject to  438.10 and the applicableStates translation requirements forMedicaid materials described in 438.10. We proposed to extend thetranslation standards applicable to theVerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222233 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations Medicaid materials used by FIDE SNPs, HIDE SNPs, and AIPs to the Medicare materials used by those plans to ensure that the dually eligible enrollees in all FIDE SNPs, HIDE SNPs, and AIPs receive all of the materials necessary for accessing and understanding all of their benefits (both Medicare and Medicaid) in a language that the enrollees understand. The proposed modifications at  422.2267 and 423.2267 would not create exceptions to other laws that govern translation of written materials provided to enrollees that we have previously described. Rather, our intent is to make it easier for dually eligible enrollees in FIDE SNPs, HIDE SNPs, or AIPs to understand the full scope of Medicare and Medicaid benefits available through such DSNPs, which would increase their ability to make informed health care decisions. It would also reduce the likelihood of an enrollee receiving materials in different languages (for example, some in English and some in Spanish) depending on whether the materials are governed by Medicare or Medicaid requirements. As explained in the propose rule, we considered applying the proposed new requirement to additional or different groups of DSNPs, such as limiting the proposal to AIPs or to organizations with DSNP-only contracts as described under  422.107(e), or expanding the requirement to all DSNPs and DSNP look-alikes (that is, the MA plans that meet the standards in  422.514(d)) during a period before the DSNP look- alike plan is nonrenewed or terminated. We decided to focus our proposal on all FIDE SNPs and HIDE SNPs, as defined at  422.2, and AIPs, as defined at  422.561, because these plans have capitated contracts with State Medicaid agencies and must already translate Medicaid materials to comply with their Medicaid managed care contracts, and would likely either have staff that are capable of translating materials into these languages or contract with organizations to perform these translations. In addition, an increasing number of dually eligible individuals are in FIDE SNPs, HIDE SNPs, and AIPs where the same organization provides coverage of both the Medicare and Medicaid services for the enrollee. We received the following comments, and our responses follow. Comment: Many commenters, including MACPAC, supported our proposal to require that FIDE SNPs, HIDE SNPs, and AIPs translate materials into any languages required by Medicare plus the Medicaid translation standard of the State in which the plan operates. MACPAC reported that dually eligible individuals are more likely to be from racial or ethnic minority groups than Medicare-only beneficiaries. For example, MACPAC noted in 2020, 17 percent of dually eligible individuals were Hispanic compared to 6 percent of Medicare beneficiaries who are not dually eligible. A commenter noted that when culturally and linguistically- appropriate services are not provided, some dually eligible recipients of home and community-based services have had trouble accessing the care they need. This commenter also expressed that, if done well, integrating Medicare and Medicaid in a culturally-appropriate way could advance health equity. Another commenter stated that plans participating in the Financial Alignment Initiative (FAI) demonstrations have had to do targeted and culturally competent education and outreach, so some plans may have the necessary experience to do so in the DSNP environment. A few commenters noted that a similar requirement was successfully applied to the MMPs in FAI and resulted in improved communication to plan enrollees. Response: We appreciate the commenters support for our proposed changes to require that FIDE SNPs, HIDE SNPs, and AIPs translate materials into any languages required by Medicare plus the Medicaid translation standard of the State in which the plan operates. Based on our experience with MMPs, we agree with the commenters that these changes can help improve access to care and advance health equity. Comment: A few commenters recommended that CMS apply this translation requirement to all DSNPs, including those that do not have affiliated Medicaid managed care plans. A commenter noted that DSNPs are designed for and required to offer at least some coordination between Medicare and Medicaid benefits, even when Medicaid benefits are provided on a fee-for-service basis. This commenter explained that sending communications to a plan enrollee about Medicare in Englisha language that the individual cannot understandwhen that same member is receiving information about Medicaid benefits in another language