2023-07115.pdf

to strengthen the regulations current application or requirements. VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222153 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations Our proposal was two-part. First, we proposed to change the current paragraph heading from Cultural considerations to Ensuring Equitable Access to Medicare Advantage (MA) Services; the term equitable access is a broader and more suitable description for the paragraph, as it does not emphasize protecting access to care for one population over another. As we stated in our proposal, this change would more clearly reflect the inclusive nature of the protections MA organizations must guarantee for all enrollees under this provision. The second part of our proposal was to add more populations to the existing list of groups that appear in the regulation. Specifically, at  422.112(a)(8), CMS proposed to replace the phrase those with limited English proficiency or reading skills, and diverse cultural and ethnic backgrounds after the word including and to add in its place additional paragraphs listing more examples of populations that an MA organization must ensure services are provided to in a culturally competent manner and promote equitable access to services for in order to satisfy the existing requirement: (i) people with limited English proficiency or reading skills; (ii) people of ethnic, cultural, racial, or religious minorities; (iii) people with disabilities; (iv) people who identify as lesbian, gay, bisexual, or other diverse sexual orientations; (v) people who identify as transgender, nonbinary, and other diverse gender identities, or people who were born intersex; (vi) people who live in rural areas and other areas with high levels of deprivation; and (vii) people otherwise adversely affected by persistent poverty or inequality. As we noted in our proposal, MA organizations must provide all enrollees, without exception, accommodations to equitably access services according to applicable statutory, regulatory, and other guidance. In other words, the presence of this list should not be construed to mean that accommodations or steps necessary to ensure cultural competency in delivering benefits are required only for enrollees who belong to the groups listed herein. Instead, the proposed changes, with respect to a revised list of populations, are clarifying in nature, non-exhaustive, and are intended to provide additional examples of populations MA organizations should be mindful of in their plan designs. We again emphasize that the regulation already explicitly applies to all enrollees without exception; therefore, the protections of this provision, which were already in effect prior to our proposal, must continue to be part of an MA organizations work to ensure that all Medicare-covered items and services are available and accessible to all enrollees. Comment: Commenters generally supported the changes we proposed for this provision. We received no modification requests for the proposed heading change from Cultural considerations to Ensuring Equitable Access to Medicare Advantage (MA) Services. Some commenters suggested that CMS include additional populations in the proposed list of groups. For example, one commenter recommended a slight change to the language rural areas and other areas with high levels of deprivation to include under-resourced areas. Another commenter suggested that CMS change the language persistent poverty and inequality to include and/or lack of access to health care services. Some commenters suggested that we address intersectional conditions affecting some enrollees. Response: We appreciate these suggestions. We consider an enrollee in an under-resourced area or who experiences a lack of access to health care services to be among those that an MA organization must ensure are served equitably because the regulation extends this protection to all enrollees. We also note that intersectional conditions are already included, not specifically, but by virtue of the regulation applying to all enrollees, and should likewise be addressed when they could result in inequitable access to services. In order to avoid redundancy and keep our language generally consistent with E.O. 13985, we will not be adding additional groups at this time. However, we reiterate that the protections of this provision continue to apply to all enrollees, not just the populations listed in the regulation. Comment: Some commenters recommended that CMS further define the newly listed populations (for example, under what conditions would an area qualify as having high levels of deprivation) to ensure it is properly understood to whom the provisions apply and when. Response: Because this provision applies to all enrollees, it would be of limited practical value for CMS to define each group listed in the regulation in detail. Instead, MA organizations should continue to identify remedies whenever it is evident that enrollees equitable access to services might be challenged by conditions such as a disability, race, geographic location, or other factors. Comment: Some commenters recommended that CMS delay the finalization of this proposal in order to allow MA organizations to prepare for the changes. Response: As we discussed in our proposal, the obligation on MA coordinated care plans to ensure that services are provided in a culturally competent manner to all enrollees was originally finalized in June 2000 (65 FR 40170). Because this regulation has already been in effect for a significant amount of time and our proposal makes no changes to the regulations current application or requirements, a delay in the finalization of this proposal would unlikely benefit enrollees or the MA organizations who serve them. Finally, all public comments received on this proposal were generally supportive, including those that requested that modifications be made to the final rule. After consideration of the comments and for the reasons outlined in the proposed rule and our responses to comments, including that the requested modifications would not produce substantive changes to either the application or requirements of the provisions (which were in effect prior to the proposal), we are finalizing the revision to  422.112(a)(8) as proposed. 3. Medicare Advantage (MA) Provider Directories ( 422.111) Section 1852(c)(1) of the Act requires an MA organization to disclose, among other things, the number, mix, and distribution of plan providers in a clear, accurate, and standardized form to each enrollee in an MA plan offered by the MA organization at the time of enrollment and at least annually thereafter. CMS implemented this requirement in a regulation at  422.111(a) and (b)(3)(i), requiring that an MA organization must disclose the number, mix, and distribution (addresses) of providers from whom enrollees may reasonably be expected to obtain services, in the manner specified by CMS, to each enrollee electing an MA plan it offers; in a clear, accurate, and standardized form; and at the time of enrollment and at least annually thereafter, by the first day of the annual coordinated election period. In addition, under  417.427, the MA disclosure requirements at  422.111 also apply to section 1876 cost plans. CMS has historically interpreted the disclosure requirement at  422.111(b)(3)(i)the number, mix, and distribution (addresses) of providers from whom enrollees may reasonably be expected to obtain servicesas VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222154 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations 10The current MA and Section 1876 Cost Plan Provider Directory Model is located at: https://www.cms.gov/Medicare/Health-Plans/ManagedCareMarketing/MarketngModelsStandardDocumentsandEducationalMaterial. 11The current MA and Section 1876 Cost Plan Provider Directory Model is located at: https://www.cms.gov/Medicare/Health-Plans/ManagedCareMarketing/MarketngModelsStandardDocumentsandEducationalMaterial. 12https://www.minorityhealth.hhs.gov/Assets/ PDF/TCH%20Resource%20Library_CLAS%20CLC%20CH.pdf. 13https://pubmed.ncbi.nlm.nih.gov/20878497/ ; https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2599011; https://link.springer.com/article/10.1007/s11606-019- 04847-5. 14https://www.cms.gov/cms-strategic-plan . referring to the provider directory. CMS developed the MA and Section 1876 Cost Plan Provider Directory Model,10a model material created as an example of how to convey the required information to enrollees. In accordance with  422.2267(c), when drafting their provider directories based on CMSs model, organizations must accurately convey the required information and follow the order of content specified by CMS. The current provider directory model contains an array of specific required information based on  422.111(b)(3)(i); we refer to this information collectively as required provider directory data elements. For example, organizations must list only the office or practice location(s) where the provider regularly practices, must clearly identify the capacity in which the provider is serving (that is, specialty type), and must clearly identify whether or not a provider is accepting new patients or provide a notice directing beneficiaries to contact a provider to determine if he or she is accepting new patients. Several of these data elements are tied to how  422.111(b)(3)(i) requires the organization to disclose information about providers from whom enrollees may reasonably be expected to obtain services; issues of access, including whether the provider is accepting new patients and the location, are integral to whether an enrollee may reasonably be expected to obtain covered services from that provider. In addition, some of these provider directory data elements, such as notations on restrictions in access, or indicators regarding whether a provider is accepting new patients, contain important information that organizations should consider when verifying that their networks are truly adequate. This consideration enables organizations to ensure that all covered services are available and accessible under the plan, as required by section 1852 of the Act and  422.112(a). In addition to the required provider directory data elements, the current provider directory model also addresses best practices for provider directories, including encouraging organizations to identify non-English languages spoken by each provider as well as include a specific notation on any restrictions on the accessibility of the provider and the providers location for people with physical disabilities.11In the proposed rule, CMS proposed to codify two best practices (the latter in terms of accessibility for deaf or hard of hearing individuals) as regulatory requirements at  422.111(b)(3)(i). First, we proposed to mirror the provider directory requirements for Medicaid managed care plans at  438.10(h)(1)(vii) by adding the phrase 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 to paragraph (b)(3)(i). This regulatory addition would change these two best practices to required data elements that all organizations must include in their provider directories. Currently, the Medicaid managed care regulation at  438.10(h)(1)(vii) requires that provider directories for Medicaid managed care plans include information on the providers cultural and linguistic capabilities, including languages (including American Sign Language (ASL)) offered by the provider or a skilled medical interpreter at the providers office, as well as other information identifying the providers location, contact information, specialty, and other information important for beneficiaries in selecting a health care provider. By proposing to align the Part C provider directory requirements with those used in Medicaid managed care, this proposed change sought to help move the agency closer to its goal of aligning the various CMS program requirements. We note that the phrase cultural and linguistic capabilities as proposed for  422.111(b)(3)(i) refers to the capabilities of a provider or skilled medical interpreter at the providers office to deliver culturally and linguistically appropriate services (CLAS), which are defined by the HHS Office of Minority Health (OMH) as services that are respectful of and responsive to individual cultural health beliefs and practices, preferred languages, health literacy levels, and communication needs.12As indicated by several research studies, language concordance between providers and limited English proficient individuals is associated with better health outcomes, and so better matching patients with providers who speak the same language is expected to improve quality of care and reduce disparities.13CMS believes this important regulatory change would enhance the quality and usability of provider directories, particularly for non-English speaking enrollees searching for providers who speak their preferred language, for limited English proficient individuals, and for those enrollees seeking providers who use ASL themselves or have an ASL interpreter available in their office. This proposed change does not implement, take the place of, or supersede an organizations or providers obligations to take reasonable steps to ensure meaningful access to such programs or activities by limited English proficient individuals and appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in such programs or activities, including the provision of oral language assistance services and/or auxiliary aids and services when required by applicable law (section 1557 of the Patient Protection and Affordable Care Act (PPACA) and 45 CFR part 92). We proposed this new requirement for MA provider directories as a standard for implementing and ensuring compliance with section 1852(c)(1)(C) of the Act and as a necessary and appropriate standard to ensure that MA enrollees have the information they need in order to access covered services from an MA