Medicare Advantage Organizations and Part D sponsors have a responsibility to ensure they offer and provide their members and potential enrollees with content and materials in alternate languages or accessible formats for those individuals with sensory, manual, or speaking impairments, except as modified in state-specific marketing guidance for each state’s demonstration. Excluding the exception mentioned above, plans must provide written communications and notices in alternate formats and languages, consistent with the requirements governed under Section 1557 [1] of the Affordable Care Act, Section 504 of the Rehabilitation Act of 1973, the Department of Health and Human Services (HHS) regulations (Title 42 of the Code of Federal Regulations (CFR), Parts 417, 422, and 423), and the Centers for Medicare and Medicaid Services (CMS) Medicare Marketing Guidelines.
Through various oversight activities, enrollee complaints, and stakeholder feedback, CMS identified the need for enhanced requirements to the Medicare Advantage (MA) and Part D programs related to translation and accessibility standards. To address this need, CMS proposed and subsequently finalized provisions to improve access to information for individuals needing alternate languages or accessible formats. Published on April 12, 2023, CMS released the “Contract Year 2024 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly” Final Rule (CMS-4201-F) [2] (2024 Final Rule). It is crucial for plans to implement the applicable changes accurately within their internal operations and thoroughly review and update their existing policies, procedures, and processes to ensure complete adherence to the revisions outlined in the 2024 Final Rule.
These Final Rule changes went into effect June 5, 2023, and will apply to coverage beginning January 1, 2024. Its provisions include revised requirements for MA and Part D plans to provide effective standardized communication and meaningful access to their members:
- On a standing basis in any non-English language that is the primary language of at least 5% of the individuals in a plan benefit package service area, or
- In an accessible format upon receiving a request for the materials, or
- Upon otherwise learning the enrollee's primary language or language preference and/or need for an accessible format.
Background of CMS Concerns Leading to the Final Rule
CMS expressed concerns that enrollees were often required to make multiple requests for materials in an alternate language and format. CMS believes it is a substantial burden for enrollees to request each material in a non-English language or request accessible formats for each material, which poses a critical delay in accessing care timely. Additionally, CMS program audits uncovered that Special Needs Plans (SNPs) do not always translate Individualized Care Plans (ICPs) into the primary language of enrollees, even when translation is requested as part of completing a health risk assessment, which is vital to how individuals access services and make decisions about their health care. In addition, due to the increasing number of dually eligible individuals enrolled in managed care plans, CMS identified instances where Medicare Advantage requirements did not align with the Medicaid standards for translating plan materials.
How the Updated Translation and Accessibility Standards Impact Plans
To address CMS concerns and, most importantly, reduce barriers for enrollees (and potential enrollees), CMS enacted the additional adjustments outlined in the 2024 Final Rule to enforce additional Medicare marketing and communication standards upon health plans. CMS anticipates this will aid in providing individuals with limited English proficiency and disabilities access to critical information and content in non-English languages and accessible formats to increase their ability to make informed healthcare decisions and remove any ambiguity associated with MA and Part D plan responsibilities.
In response to public feedback, CMS clarified that it is acceptable for plans to confirm with the member their preferred language or format for receiving specific materials, such as providing the enrollee with the option to request hard copy instead of electronic materials. Requests for hard copy materials may be material specific; members must be allowed the option for a one-time request or on an ongoing basis until the enrollee chooses to receive electronic materials again. In addition, a plan’s fax and email or web-based portal systems must meet the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy and security requirements. If the enrollee agrees, the MA plan may deliver written notices by fax or email.[3]
Once a plan learns of an enrollee’s primary language and/or an enrollee’s disability necessitating an alternate format—whether through an enrollee requesting material in a primary non-English language or alternate format—the plan must provide required materials in that language and/or accessible format as long as the enrollee remains enrolled in the plan or until the enrollee requests that the plan provide required materials differently. This also impacts SNP enrollees with ICPs, ensuring they adhere to translation requirements to assist members and their caregivers and increase their ability to make informed healthcare decisions. The ICPs, developed in consultation with the enrollee, must be provided to the members in their preferred language or an alternative format, as applicable.
The 2024 Final Rule also requires Fully Integrated Dual Eligible (FIDE) SNPs, Highly Integrated Dual Eligible (HIDE) Special Needs Plans, and Applicable Integrated Plans (AIPs) to translate required materials into any languages required by the Medicare Translation Standard plus any additional languages specified through their Medicaid capitated contracts. CMS anticipates these new requirements for FIDE SNPs, HIDE SNPs, and AIPs will aid in increasing access to care and promoting health equity.
Considerations for Successful Implementation of the Changes
With the start of the 2024 contract year quickly approaching, MA and Part D plans must act promptly to comply with the updated provisions in the Final Rule. While some organizations may have already implemented the updated requirements, it is essential to thoroughly understand these changes when assessing the effectiveness of language assistance programs and related operations. Plans should develop a comprehensive strategy with a structured approach to guarantee consistent adherence to translation and alternate format requirements throughout the organization and by any relevant first-tier, downstream, or related entities (FDRs). This strategy should establish safeguards to ensure all enrollees receive fair distribution and unhindered access to plan materials and content, regardless of language or communication barriers.
Actions to be taken by plans to prepare for the new requirements may include but are not limited to:
- Reviewing all enrollee touch points [4] across channels to capture language preferences and the need for auxiliary aids in alternate languages or accessible formats.
- Thoroughly assessing plan operations to identify any deficiencies in the language assistance program(s) and formulating corrective action plans to address process gaps with updated requirements.
- Validating system functionality and software applications to enable a streamlined process for tracking enrollee requests and ensuring their communication and format preferences are documented accurately for inter-departmental communication.
- Reviewing all enrollee correspondence to ensure the full capability to provide in alternate languages or accessible formats as applicable.
- Updating policies, procedures, and corresponding system and staff workflows (e.g., incorporating new standard operating procedures for handling enrollee requests for translating or formatting specific plan materials).
- Educating and training applicable departments and staff to ensure they understand updated requirements and the impacts on their workflows and responsibilities (e.g., developing best practice guides and operationalizing policies and procedures for staff to better assist members needing alternative format or translation services).
- Educate enrollees on the availability of translated materials and accessible formats using auxiliary aids and services through enrollee newsletters, advertising, or other educational forums.
- Revisit monitoring and oversight activities to ensure these new regulatory changes and enhancements are included in the plan compliance program.
As stated in the 2024 Final Rule, CMS will evaluate the implementation of these new requirements using their current oversight methodology, including program audits and review of complaints. Similar to past regulation modifications, CMS will hold plans accountable for these provisions. Those plans undergoing program audits in 2024 may receive closer examination regarding compliance with the new requirements as CMS continues to gather data for future rulemaking. Relatedly, during the recent National Association of Accountable Care Organizations (ACO) fall conference in Washington, a top official on behalf of CMS shared that it promises stricter oversight of Medicare Advantage plans amid growing complaints about care denials and access to services. [5]
Get in Touch
Our team of experts are here to help. The Ankura team leverages years of managed care compliance and operational experience to support Medicare Advantage and Prescription Drug Plan clients. We are ready to assist your organization with the changes outlined in the Final Rule and implement optimal best practices. Contact us today to explore how we can help your organization prepare for the 2024 Contract Year.
SOURCES
[1]https://www.hhs.gov/civil-rights/for-individuals/section-1557/1557faqs/index.html
[3]https://www.cms.gov/medicare/health-drug-plans/managed-care-marketing/medicare-guidelines
[4] Examples of these touch points include welcome calls, health risk assessments, nurse advice lines, and other interactions associated with member services, enrollment, utilization management, pharmacy, appeals and grievances, and care management.
© Copyright 2023. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC., its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.
