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provider directories. A commenter stated that there is currently no industry standard for organizations to collect and document information on the status of provider MOUD waivers. They also expressed concerns that including this information in provider directories would cause enrollee confusion, as most enrollees would not understand this designation nor how to factor it into their provider selection. Another commenter believed that it would be challenging for organizations to identify and confirm that providers have the waiver. Response: We agree with commenters concerns surrounding potential implementation of this requirement. As noted previously, we are not finalizing this second aspect of our proposal for  422.111(b)(3)(i) based on the majority of comments recommending such course of action in alignment with the CAA of 2023 provision. c. Summary of Regulatory Changes We received a range of comments pertaining to this proposal, the majority of which reflected support for the regulation. After considering the comments we received and for the reasons outlined in the proposed rule and our responses to comments, we are finalizing the proposed change to  422.111(b)(3)(i) to require organizations to include in their provider directories each providers cultural and linguistic capabilities, including languages (including American Sign Language) offered by the provider or a skilled medical interpreter at the providers office. We are not finalizing our proposal to require organizations to include in their provider directories notations for MOUD-waivered providers. 4. Digital Health Education for Medicare Advantage (MA) Enrollees Using Telehealth ( 422.100) Telehealth has become an increasingly popular and important tool in providing access to health care, especially during the COVID19 Public Health Emergency (PHE). For the purposes of this section of this final rule, we are using the term telehealth benefits very broadly to encompass covered services that are furnished to the enrollee (that is, the patient) in a different location than where the provider is located. There are multiple categories of covered benefits where this circumstance is present, with additional criteria or requirements applying to different categories of covered benefits when the enrollee and provider are not in the same place at the time the service is furnished. Under the MA program, there are various requirements and options for coverage of telehealth benefits. When original Medicare covers telehealth benefits, such as services described in section 1834(m) of the Act and  411.78, MA organizations must cover those telehealth benefits as basic benefits, as defined in  422.100(c). If an MA organization wishes to offer telehealth benefits that go beyond the scope of the original Medicare telehealth benefits that must be covered by every MA plan, MA organizations have the option to offer Additional Telehealth Benefits (ATBs) and/or supplemental telehealth benefits. Section 1852(m) of the Act and  422.135 outline the requirements for ATBs, which are generally services for which benefits are available under Medicare Part B but which are not payable under section 1834(m) of the Act, and the services are furnished when the patient and the physician or practitioner are not in the same location. ATBs may be included in the bid and treated as basic benefits when the requirements of  422.135 are met. If an MA organization wishes to offer telehealth benefits that are not covered by original Medicare and are not within the scope of  422.135, then the MA organization may choose to offer them as supplemental benefits. The requirements for MA supplemental benefits are set forth at section 1852(a)(3) of the Act and  422.100(c) and 422.102. An MA organizations bid must accurately reflect the covered telehealth service, whether it is covered as an ATB or a supplemental benefit. In addition, during the COVID19 PHE, MA organizations have been required to account for the various waivers, amendments to regulations, and other guidance published by CMS, with regard to telehealth benefits. In using the term telehealth benefits here, we mean to include all of these various categories of covered benefits. In the regulation text we are finalizing in this rule, we use the phrase covered benefits that are furnished when the enrollee and the provider are not in the same location using electronic exchange, as defined in  422.135 as a means to encompass all of the potential covered benefits included in our broad use of the term telehealth benefits. As defined in  422.135, electronic exchange means electronic information and telecommunications technology, which we believe is broad enough to include telecommunications and technologies permitted for covered Part B services under section 1834(m) of the Act and implementing regulations as well as MA ATBs and other supplemental benefits. In recent years, CMS has seen a significant increase in the offering of telehealth benefits in the MA program. Almost 99 percent of MA plans offered some form of telehealth benefits in contract year 2022, either in the form of ATBs or supplemental telehealth benefits. This is a 16 percent increase since contract year 2018 and a 9 percent increase since contract year 2020, which was the first year MA organizations were permitted to offer ATBs. ATB offerings alone have increased by approximately 39 percent since their inception 2 years ago. The total number of MA enrollees who have access to MA telehealth benefits of any kind has risen from approximately 89 percent in contract year 2018 to nearly 100 percent in contract year 2022. While the supply and demand of telehealth has clearly grown in recent years, there is evidence that barriers to accessing telehealth leave room to improve health equity in telehealth. The regulatory changes we are finalizing here, taken together, are an attempt to improve health equity in telehealth and are consistent with both E.O. 13985 and CMSs first strategic pillar Advance VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222159 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations 23https://www.whitehouse.gov/briefing-room/ presidential-actions/2021/01/20/executive-order- advancing-racial-equity-and-support-for- underserved-communities-through-the-federal- government/. 24https://www.cms.gov/cms-strategic-plan . 25https://www.cms.gov/pillar/health-equity . 26https://telehealth.hhs.gov/providers/health- equity-in-telehealth/. 27https://pubmed.ncbi.nlm.nih.gov/33325524/ ; https://pubmed.ncbi.nlm.nih.gov/32703737/ . 28https://telehealth.hhs.gov/providers/health- equity-in-telehealth/. 29https://nnlm.gov/guides/intro-health-literacy . 30https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC8464820/. 31https://nces.ed.gov/pubs2018/2018161.pdf . 32https://www.aarp.org/research/topics/ technology/info-2022/2022-technology-trends-older- americans.html. 33https://www.telehealthequitycoalition.org/ improving-digital-literacy-to-improve-telehealth- equity.html. 34https://www.jmir.org/2021/7/e27682/ . 35https://www.pewresearch.org/fact-tank/2021/ 09/10/americans-with-disabilities-less-likely-than- those-without-to-own-some-digital-devices/. 36https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC5878361/. 37https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC4799429/. 38https://academic.oup.com/jamia/article/27/12/ 1949/5899728. 39https://jamanetwork.com/journals/jama/ article-abstract/2426088. 40https://www.sciencedirect.com/science/article/ pii/S0738399114001876. 41https://www.cdc.gov/pcd/issues/2020/20 _0130.htm. Equity under the 2022 CMS Strategic Plan.23 24For purposes of this provision, we are using CMSs definition of health equity, which is included in section III.A.1. of this final rule.25In developingour digital health education programpolicy, we were guided by HHSsdefinition of health equity intelehealth as meaning the opportunityfor everyone to receive the health carethey need and deserve, regardless ofsocial or economic status. Providinghealth equity in telehealth meansmaking changes in digital literacy,technology, and analytics, which willhelp telehealth providers reach theunderserved communities that need itthe most.26As we described in the proposed rule, health equity in telehealth is difficult to attain due to barriers to telehealth access, which may include: lack of video sharing technology (for example, a smartphone, tablet, or computer), spotty or no internet access, lack of housing or private space to participate in virtual visits, few local providers who offer telehealth practices, language barriers (including oral, written, and signed language), the inability to incorporate third party auxiliary aids and services such as live captioners, telehealth software, apps, and websites that are accessible and usable by people with disabilities, and lack of adaptive equipment for people with disabilities along with incompatibility with external assistive technologies used by people with disabilities.27These barriers are especially burdensome on populations that may already experience health disparities, such as those who are adversely affected by persistent poverty and inequality, those who live in rural areas, people from some racial and ethnic groups, immigrants, people who identify as LGBTQI+, people with disabilities, older people, limited English proficient individuals, people with limited digital literacy, and people who are underinsured or uninsured. Such underserved communities often lack equitable access to health care, leading to consequences such as: higher mortality and disease rates, more severe disease and illness, higher medical costs, lack of access to treatment, and lack of access to health insurance.28 The existence of communities with low digital health literacy who in turn cannot access telehealth represents a significant obstacle in achieving health equity in telehealth. The World Health Organization defines digital health literacy as the ability to seek, find, understand, and appraise health information from electronic sources and apply the knowledge gained to addressing or solving a health problem. Examples of digital health literacy include accessing your electronic health record, communicating electronically with your health care team, ability to discern reliable online health information, and using health and wellness apps.29Low digital health literacy can impact an individuals access to or quality of telehealth visits.30 Evidence shows that those with low digital health literacy tend to be older, lower income, less educated, and Black or Hispanic.31 Many older adults with low digital health literacy experience gaps in access to the health care they need, and this is concerning for the MA program, whose enrollee population includes individuals age 65 and older (as well as individuals under age 65 with disabilities). For example, the American Association of Retired Persons (AARP) annual technology survey found that more than half of older adults (age 50 and older) in 2021 indicated they need more digital education, while more than one in three indicated they lacked confidence when using technology.32Of the 32 million Americans who cannot use a computer, approximately one- third are seniors.33Further, less than one-third of Medicare beneficiaries over 65 have at-home digital access, and those over age 75 and with less than high school-level education are less likely to use telehealth.34For people with disabilities, 15 percent reported not using the internet as opposed to 5 percent in the general population in a Pew Foundation Survey, while 62 percent of people with disabilities as opposed to 81 percent of the general population own their own desktop or laptop computer.35Other studies have confirmed a significant gap in digital literacy among people with disabilities.36Another survey found that Black, Latino, and Filipino seniors and those 75 years and older are significantly less likely to own devices like computers and smartphones compared to non-Hispanic whites, Chinese, and younger seniors (ages 65 69); this was also true in terms of these groups respective use of the internet and email, as well as their ability and willingness to use technology for telehealth purposes.37 As outlined in this final rule, research indicates that older adults, people with disabilities, people from some racial and ethnic groups, rural communities, underserved populations, and those adversely affected by persistent poverty and inequality are all disadvantaged by limited access to modern information and communications technology (sometimes referred to as a digital divide).38Individuals with a higher degree of digital health literacy receive more health care information, are better equipped to evaluate the quality of information regarding their health care, and report higher telehealth usage.39 Further, individuals with chronic diseases also benefit from digital health literacy; when such individuals possess digital health literacy, they tend to monitor and manage their diseases more competently, are more satisfied with the telemedicine services, and respond faster to changes that might adversely affect their situation, thereby improving their overall health.40This is significant because individuals with two or more chronic diseases are more likely to be individuals 65 and over.41 As we described in the proposed rule, CMS does not currently have requirements for MA organizations in the area of digital health literacy. Given the need to increase digital health literacy in many communities with MA enrollees and the goal to achieve health equity in telehealth, we believe it is necessary to implement regulations addressing digital health literacy in the MA program. CMS expects that these VerDate Sep<11>2014 21:20 Apr 11,