preparation for CMS CY 2024 Medicare Advantage and Part D Final Rule

Let’s jump into the most obvious requirements on strengthening translation and accessible format requirements for Medicare Advantage, Part D, and D–SNP enrollee marketing and communication materials (§§ 422.2267 and 423.2267). This rule states that applicable entities:

• “…must provide materials to enrollees 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 accessible format upon receiving a request for the materials or otherwise learning of the enrollee’s primary language and/or need for an accessible format.” (1) This applies to MA organizations, Cost Plans, and Part D Sponsors.  
• must “… translate required materials into any languages required by the Medicare translation standard at § 422.2267(a) plus any additional languages required by the Medicaid translation standard as specified through their Medicaid capitated contracts.” This applies to Fully Integrated Dual Eligible Special Need Plans (FIDE SNPs), Highly Integrated Dual Eligible Special Need Plans (HIDE SNPs) and Applicable Integrated Plans (AIPs).

The purpose of this standing request for translated materials and materials in accessible formats was a response to complaints and feedback that CMS felt created an undue burden on enrollees. The CMS received complaints and feedback regarding the following:

• Enrollees had to make a separate request each time they needed material in an alternate language or an alternate format.
• Special Needs Plans (SNPs) did not always translate Individualized Care Plans (ICPs) into enrollees’ primary languages.

The regulation requires that materials outlined in §§ 422.2267(e) and 423.2267(e)

• Are available to enrollees on a standing basis in any non-English languages that are the primary language of at least 5% of the enrollees in a plan benefit package services area. This includes a total of forty-seven (47) unique materials. The languages meeting the 5% threshold are available for each U.S. county in the HPMS memorandum via the HPMS marketing review module.
• Applies to both non-English languages and alternative formats (i.e. Spanish Braille).
• Must provide materials in the requested format from the time that they learn of enrollees need until they unenroll or request a different format
• applies to Individualized Care Plans (ICPs) for SNP enrollees only
• How much is the CMS estimating this will cost plans? Approximately $15,000 for plans to establish a process for handling standard requests. It also assumes 200 hours of work from a business operations specialist. The CMS did not estimate the cost associated with the actual translation of documents as they assumed plans’ existing staff or vendor relationships would be able to cover this work.

Currently, 1.8 million dually eligible enrollees speak a language other than English at home or do not speak English fluently. The CMS is implementing changes to help ease the extra burden for Americans who already must navigate a complex health system. This is why FIDE SNPs, HIDE SNPs, and AIP customers will be required to translate materials into the Medicare translation standard plus additional Medicaid languages.  

• The regulation expands existing translation requirements outlined at 422.2267(a)(2) and 423.2267(a)(2) to additionally require FIDE SNPs, HIDE SNPs, and AIPs [defined at § 422.56], to translate all Medicare materials listed at 422.2267(e) and 423.2267(e) into any languages required by the Medicaid translation standards outlined in capitated managed care contracts.
• This would include a total of forty-seven (47) unique materials.  
• The languages would include any non-English languages that are the primary language of at least 5% of the enrollees in a plan benefit package services area as well as prevalent non-English languages in the service area as defined by states in the plan’s capitated managed care contracts.  
• The CMS expects the Medicaid translation requirements to be the regulatory standard, but states may impose higher standards, so they recommend referring to the managed care contracts.  
• Member ID cards are excluded from this requirement.  
• The CMS estimates a cost of $28,500 for the translation of one set of the 47 required materials into one additional language. One additional language is the anticipated burden for most plans. In CY 2023, only 16 MA plans require the translation of materials into Chinese, and only 19 MA and PDPs require translation into other Asian languages.

Health Equity has been a top priority of both the Biden-Harris Administration and CMS. Many of the requirements from this final rule are written to promote cohesion across other CMS policies and advance Health Equity for all Americans. The four key provisions include:

• Clarify the broad application of our policy that MA services be provided in a culturally competent manner.3
• Require each provider’s cultural and linguistic capabilities to be included in all MA provider directories. 3
• Require MA organizations to develop and maintain procedures to identify and offer digital health education to enrollees with low digital health literacy . . . 3
• Require MA organizations to incorporate one or more activities into their overall QI program that reduce disparities in health and health care among their enrollees

The current provider directory model encourages organizations to:

• Identify non-English languages spoken by each provider
• Include any accessibility restrictions for enrollees with physical disabilities

However, these recommendations are presently sub-regulatory guidance and are not mandated by the CMS. The provision codifies both ‘best practices’ into required data elements of the provider directory. The following was added at § 422.111(b)(3)(i): “…each provider’s cultural and linguistic capabilities, including languages (including American Sign Language) offered by the provider or a skilled medical interpreter at the provider’s office.” This change mirrors the requirements that already exist for Medicaid-managed care plans.

The demand for Telehealth / Digital Health services has highlighted barriers to accessing digital health resources. This challenge is amplified for populations that already experience health disparities and effective utilization of these services requires high digital health literacy,

The CMS is codifying requirements for MA HMOs, PPOs, HMO-POSs, and SNPs to develop and maintain procedures to identify and offer digital health education resources to enrollees, so they have better access to digital health services.

• The requirement was added at § 422.112(b) and states MA organizations must “ensure continuity of care and integration of services through arrangements with contracted providers”
• CMS recommends plans to develop digital health literacy screening and education programs to meet this requirement but suggests that access to these programs poses no technology system barriers

Plans have high-level discretion and autonomy in the policies and procedures as well as the screening and education programs developed. This requirement should be viewed as a first step to ”…assess the landscape of health equity in telehealth…”

The CMS is utilizing existing quality improvement requirements outlined in § 422.152 to support the strategic plan for health equity. The provision is broad and requires MA organizations to incorporate one or more activities into their overall QI program that reduce disparities in health and healthcare among their enrollees. While CMS offers no direct guidance on what organizations must do, they offer a few examples that would qualify as meeting this requirement:

• improving communication
• developing and using culturally appropriate materials
• community outreach
• other similar activities