evekhm/cms_iom_500 huggingface dataset:
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in addition to all applicable FDR requirements at  422.504(i), when doing business with a TPMO, the MA organization is responsible for ensuring that the TPMO adheres to any requirements that apply to MA plans, including the existing and proposed translation standard requirements. Comment: Several commenters requested that CMS expand the list of languages provided in HPMS for MA contracts to the 15 most commonly spoken non-English languages spoken in a service area. These commenters believed that this change would allow plans to see how close service areas are to meeting the 5 percent threshold for updating materials and content and plan accordingly. A few of them also recommended that CMS designate the effective date for updating new materials and content as the plan year that begins a year after the date the 5 percent threshold is met and recommended that CMS delay enforcement for a period of time. Response: We appreciate the comments. Sections 422.2267(a)(2) and 423.2267(a)(2) require that MA organizations and Part D sponsors translate required materials into any non-English language that is the primary language of at least 5 percent of the individuals in a plan benefit package (PBP) service area. In HPMS, we currently provide MA organizations and Part D sponsors with information noting the languages they are required to translate materials into based on this standard. We will consider expanding the list of languages provided in HPMS for MA and Part D plans to the 15 most commonly spoken non-English languages in a service area in a future HPMS update to assist plans in monitoring which languages may be getting close to the 5 percent threshold. We remind plans that they must also comply with translation requirements under 45 CFR 92.101 and any future requirements under 45 CFR parts 80 and 92. We also acknowledge the recommendation that CMS designate the effective date for updating new materials and content as the plan year that begins a year after the date the 5 percent threshold is met and the recommendation that CMS delay enforcement for a period of time. We note that the languages requiring translation based on the 5 percent threshold have not changed for several years. Thus, we do not anticipate that plans will need to translate required materials in many new languages in the future and decline to delay the applicability date of the requirement we are finalizing at  422.2267(a)(3) to the year after the date the 5 percent threshold is
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to translate required materials in many new languages in the future and decline to delay the applicability date of the requirement we are finalizing at  422.2267(a)(3) to the year after the date the 5 percent threshold is met. Also, we decline to delay enforcement of the requirement. We believe that the benefits of enrollees being provided required materials in non-English languages and alternate formats outweighs any additional burden by plans and are finalizing the requirement as applicable for all required materials related to CY 2024. Comment: A few commenters requested that CMS revisit the threshold requirement at  422.2267(a)(2) and 423.2267(a)(2) for translation by MA and Part D plans. The commenters recommended setting a threshold that, in addition to the percentage of individuals in a PBP service area, includes a numerical threshold based either on the number of enrollees speaking a non-English language in the PBP service area or the number enrolled in the plan. They noted that with very VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222231 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations few exceptions, the 5 percent standard means that the translation requirement applies only to Spanish, yet close to one million Medicare beneficiaries speak a non-English language other than Spanish. They also stated that using a percentage measure without any reference to the absolute number of individuals in a service area leaves significant swaths of individuals with LEP, particularly those in large diverse service areas, without access to any translated materials from their MA plans. Response: We appreciate the commenters perspectives and agree that there are few service areas in which plans are required to translate materials in non-English languages beyond Spanish. The requests for us to change the threshold for the translation requirement at  422.2267(a)(2) and 423.2267(a)(2) are out of scope of this regulation. We believe policy making on this issue would benefit from further study and engagement with interested parties, including notice
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422.2267(a)(2) and 423.2267(a)(2) are out of scope of this regulation. We believe policy making on this issue would benefit from further study and engagement with interested parties, including notice to the public and the opportunity to submit comments on this topic. We require MA and Part D plans to provide the multi- language insert that will inform the reader in the fifteen most commonly spoken non-English languages used in the U.S., as well as any additional non- English language that is the primary language of at least 5 percent of the individuals in a PBP service area, that interpreter services are available for free. We remind plans that they must also comply with translation requirements under 45 CFR 92.101 and any future requirements under 45 CFR parts 80 and 92. Comment: A few commenters stated that the translation requirement should also apply to original Medicare materials such as the Medicare & You Handbook. Response: We appreciate the comments. Materials sent directly by CMS are beyond the scope of this rulemaking, but we note that when individuals request the Medicare & You Handbook in Spanish or an accessible format, we continue to send them the Medicare & You Handbook every year in the requested format (and use that preference for other CMS mailings as well). Comment: A commenter requested that CMS increase its oversight of plan performance through secret shopper testing of language access, monitoring of language access grievances, focus groups, and other measures to hold plans accountable for compliance with language access requirements. Response: We appreciate the suggestions for oversight of plan performance for language access. Oversight of plan performance is very important to us, and we will continue to use multiple methods to ensure that plans meet the regulatory requirements and enrollees have access to the information needed to make informed health care decisions. Comment: A commenter highlighted the opportunity plans have to use community-based organizations (CBOs) to create, operationalize, and maintain the capacity to supply translation services as well as auxiliary aids and supports. The commenter asserted that such plan-CBO capacity-building can reach historically-underserved and linguistically and culturally diverse pockets of the country with (1) adaptive interventions and (2) interventions to improve provider-patient interactions and relationships. They noted the importance of working with community partners who may be best suited to provide these language and cultural competencies, but they also emphasized that Medicare language is highly technical
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interventions and (2) interventions to improve provider-patient interactions and relationships. They noted the importance of working with community partners who may be best suited to provide these language and cultural competencies, but they also emphasized that Medicare language is highly technical in nature and not every CBO partner can translate this type of language. The commenter highlighted how State Health Insurance Assistance Program (SHIP) offices and their agencies are stepping up to fulfill the need for translation services where that capacity does not currently exist. They stated that CMSs proposed language access provisions for the 2024 calendar year are necessary because SHIP counselors have limited resources and are merely scratching the surface to meet the need for translation services in their communities. Another commenter expressed that health plan materials should provide clear information on plan benefits to both enrollees and providers, and care coordinators and navigators should be available to discuss the options with enrollees. They noted that accountable care organizations (ACOs) can help with this, because they are more likely to have a longitudinal relationship with the patient and have a care team in place to help with outreach and coordination. The commenter also stated that ACOs and practices participating in advanced alternative payment models often have the infrastructure to use data to better identify, outreach, and successfully engage harder-to-reach patients, but they cannot do it as efficiently on their own. According to the commenter, the more standardization there is in how health plans communicate to patients and providers on how to access benefits and what resources are available to them, the better partners primary care physician practices can be in helping dually eligible individuals navigate the complex health care landscape. Response: We thank the commenters for highlighting the important roles that CBOs, SHIPs, and ACOs play in providing potential enrollees and enrollees with their health care options. We agree that these organizations can play a vital role in working with Medicare beneficiaries with LEP since they often have close relationships with these communities. Comment: A commenter noted the importance of using medical interpreters as a means of improving the quality of care provided to patients with LEP and patients with sensory impairments. This commenter expressed concern about the cost of providing interpreter services and that limited reimbursement is available for language access services. The commenter noted the cost of these services should be paid for by health plans and not providers. The commenter also stated that it is important that MA organizations, cost plans, and Part D sponsors
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is available for language access services. The commenter noted the cost of these services should be paid for by health plans and not 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-
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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.
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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
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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
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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
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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