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Changes to CMS Requirements for Translation and Alternate Formats

By September 7, 2023FDR, MA, Part D, September 2023

To ensure effective communication and meaningful access, Medicare Advantage (MA) and Prescription Drug Plans (PDPs) have been obligated to follow various, occasionally interconnected directives for translating member documents into different languages and fulfilling accessibility criteria.  Because both MA organizations and Part D Sponsors are recipients of Federal financial assistance, they must also adhere to the regulations outlined in Section 504 of the Rehabilitation Act of 1973 and Section 1557 of the Affordable Care Act, in addition to complying with the Centers for Medicare and Medicaid Services (CMS) requirements.  On April 12, 2023, CMS published the 2024 Final Rule[i], which includes additional adjustments to the existing translation and accessibility requirements. Medicare Plans must fully understand these requirements and ensure accurate integration within their internal operations, along with any relevant first tier, downstream, or related entities (FDRs).

2024 Final Rule Revisions

In the 2024 Final Rule, CMS expressed concern that despite the existing requirements, they have learned from oversight activities, complaints, and feedback that Medicare enrollees typically need to make a separate request each time they need material in an alternate language or in an alternate format.  CMS also found during Program Audits that special needs plans (SNPs) do not always translate individualized care plans (ICPs) into the enrollee’s primary languages, even when the enrollee has indicated their need for translation.

To minimize barriers for enrollees (and potential enrollees) with limited English proficiency and/or with disabilities who need materials in non-English languages and accessible formats and remove any ambiguity associated with MA and Part D plan responsibilities, CMS revised the requirement require that MA and Part D sponsors provide materials on a standing basis in any non-English language that meets the 5% threshold in their service area and in any accessible formats upon receiving a request or otherwise learning of the enrollee’s need for materials in an accessible format effective June 5, 2023.  Highly Integrated Dual Eligible (HIDE) Special Needs Plans and Fully Integrated Dual Eligible (FIDE) SNPs must also send ICPs in the member’s language or alternate format.   CMS clarified that is acceptable for the MA plan or Part D sponsor to confirm with the member what documents they wish to receive the materials in the alternate language or format and whether their request is on a one time or standing basis.   What this means is that once a MA plan or Part D sponsor learns of an enrollee need or receives a request for an alternate format or a language that meets the 5% threshold in their service area, they must send all required materials in the alternate format or language going forward on a standing basis.

CMS does allow MA plans and Part D sponsors some flexibility with providing the required materials based on the request of the enrollee, as long as the request is reasonable.   CMS believes that enrollees are in the best position to determine their needs for translation or an accessible format, and the plan should ensure that there is flexibility to accommodate different needs for different materials as requested by the enrollee.  If a plan has concerns that a specific format may not be an effective way to provide information based on the enrollee’s needs, then it is appropriate for the plan to reach out to the enrollee to confirm their need for specific materials, provided that this outreach meets the entity’s obligations for translation or interpretation services.   Any such requests should be clearly documented in the Member record and the rationale for the alternate delivery of materials.

  • Example: A Member requests that the Plan provide all materials in braille.  The Plan realizes that the provider directory is a large document that changes frequently, so providing it in braille may not be practical or effective.  As an alternative, the Plan could contact the Member and offer to assist with their provider requests telephonically.  However, if the Member declines the telephonic assistance, then the Plan is obligated to produce the provider directory in braille.

With these requirements touching almost every aspect of a MA and Part D Plan operations, it is important that Plans create a comprehensive strategy to oversee and validate the accurate and consistent execution of translation and alternate format requirements throughout their organizations and with relevant FDRs.  This strategy should include an assessment to pinpoint any deficiencies within your program and the formulation of corrective action plan to remediate any gaps.  The strategy should also assign clear ownership and responsibility to designated individuals or establish a dedicated task force or project team for oversight.  It is also suggested that Plans ensure there is visibility within their organization by providing regular reporting to senior leadership and the compliance committee.

BluePeak Recommendations

  1. Track: Plans should ensure there is an organizational-wide process for tracking and documenting communication with members regarding translation and alternate materials and for documenting member requests.  The 2024 Final Rule outlined changes to the regulations that Plans need to act “upon receiving a request for the materials in a non-English language or accessible format or when otherwise learning of the enrollee’s primary language or need for an accessible format.
  2. Implement: Plans should develop processes for addressing requests and situations when they learn of a member’s need for an alternate language or format and ensuring all relevant departments, systems and FDRs are made aware so that all required materials are sent in that format going forward.  Plans can implement processes to clarify a member’s desire to receive communications in another language or alternate format.
  3. Train: Plans should develop training or otherwise communicate the 2024 changes to internal business areas and FDRs to ensure they understand the requirements and the proper processes to address requests.
  4. Validate: Validate that the Multi-Language Insert (MLI) is current and is being included with all required materials by internal business areas and FDRs.
  5. Monitor and Oversee: Plans should include translation and alternate format requirements in their monitoring and auditing programs to help ensure compliance with the requirements.
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