On February 18, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule entitled “Medicare and Medicaid Programs; Contract Year 2021 and 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly” (CMS-4190-P).
The proposed rule touched on a range of issues relating to the Medicare Advantage (MA) and Part D prescription drug programs, including an effort to put into regulation, or codify, sub-regulatory rules and guidance previously issued by CMS. On April 6, 2020, the Center for Medicare Advocacy submitted comments to the proposed rule (generally referenced in this Alert as “Center comments”).
As discussed in Part II of this CMA Alert, on June 2, 2020 CMS issued a final rule addressing some of the provisions of the proposed rule, effective 2021 (CMS–4190–F), at 85 Fed Reg 33796 (June 2, 2020). CMS left the balance of the proposals to subsequent rulemaking. Some of the provisions of this final rule most relevant to Medicare beneficiaries are highlighted here; we also reference a previous Alert that goes into more detail.
As discussed in Part III of this CMA Alert, on the last full day of the Trump Administration, January 19, 2021, CMS issued a final rule for 2022 addressing most of the remaining provisions from the February 2020 proposed rule (CMS–4190–F2), at 86 Fed Reg 5864 (January 19, 2021). Some of the provisions of this final rule most relevant to Medicare beneficiaries are discussed here. In addition, an Addendum to this Alert includes more detail about the rule’s codification of marketing and communication guidance that, among other things, blurs the distinction between educational and marketing events.
II. 2021 Final Rule – (CMS-4190-F) (June 2020)
On June 2, 2020, the Trump CMS published a final rule regarding Medicare Advantage (Medicare Part C) and Part D prescription drug plans (“C & D Rule”). The rule is entitled “Medicare Program; Contract Year 2021 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, and Medicare Cost Plan Program” (CMS–4190–F), at 85 Fed Reg 33796 (June 2, 2020), available here. CMS also issued a fact sheet describing the final rule. This rule implemented some of the proposals from the February 2020 proposed rule, and left others for subsequent rulemaking.
The Center for Medicare Advocacy issued a CMA Alert (May 28, 2020) describing some of these changes most relevant to Medicare beneficiaries. As discussed in more detail in that Alert, these provisions included the following:
- Weakened Medicare Advantage (MA) Network Adequacy Requirements – CMS relaxed requirements that MA plans must meet in order for their provider networks to meet minimum standards. This includes reducing the percentage of MA plan enrollees that must reside within the maximum time and distance standards in non-urban counties from 90 percent to 85 percent, and allowing plan sponsors to meet weaker standards if they provide certain services via telehealth. And, perhaps most alarming, under the Trump administration, CMS loosened standards concerning access to dialysis providers – just as MA plans are required to accept people with end-stage renal disease (ESRD) in 2021.
- Limit on Dually Eligible Special Needs Plan (D-SNP) “Look-Alikes” – CMS responded to a trend of D-SNP “look-alike plans” that market aggressively to and are made up mostly of dually eligible individuals, but are not subject to the federal regulatory and state contracting requirements applicable to D-SNPs, and do not provide Medicaid integration. Among other things, CMS appropriately implemented limitations on contracting with such plans starting in 2022 that have a threshold percentage of enrollees who are eligible for Medicaid.
- Special Election Periods (SEPs) Codified – SEPs for MA and Part D plan enrollment and disenrollment that previously existed in sub-regulatory guidance are now codified in regulations, with some additional clarifications. CMS retained the ability to grant case-by-case exceptional circumstance SEPs, and created new SEPs:
- SEP for Individuals Enrolled in a Plan Placed in Receivership, and
- SEP for Individuals Enrolled in a Plan that has been identified by CMS as a Consistent Poor Performer.
III. 2022 Final Rule (CMS-4190-F2) (January 2021)
On January 19, 2021, CMS issued a final rule entitled “Medicare and Medicaid Programs; Contract Year 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All- Inclusive Care for the Elderly” (CMS–4190–F2), at 86 Fed Reg 5864, available here.
At the outset of the preamble to the final rule, CMS notes that it “is fulfilling its intention to address the remaining proposals from the February 2020 proposed rule here. Although the provisions adopted in this second final rule will be in effect during 2021, most provisions will apply to coverage beginning January 1, 2022” (p. 5864). CMS notes that this rule addresses all remaining proposals from February 2020 except for the following two, which it might address in subsequent rulemaking: 1) Maximum Out-of-Pocket (MOOP) Limits for Medicare Parts A and B Services and (2) Service Category Cost Sharing Limits for Medicare Parts A and B Services and
per Member per Month Actuarial Equivalence Cost Sharing.
Many of the provisions of the final rule codify existing guidance; in other words, CMS took rules already outlined in sub-regulatory guidance and put them into regulations, which have more force and authority than guidance. The following are summaries of some of the provisions of this final rule. Note that this summary is not comprehensive; it does not include a summary of all of the topics and provisions in final rule.
- Codified Requirements for Medicare Communications and Marketing
As discussed in the Addendum below, the final rule codifies recent changes to Medicare’s marketing rules, including those that weaken the distinction between educational and marketing events. Further, the Trump CMS declined requests to provide needed guidance for the marketing of Medicare Advantage Special Supplemental Benefits for the Chronically Ill (SSBCI). In addition, CMS continued to pass on strengthening plan sponsors’ language access requirements.
- Permit Part D Plans to Use a Second, “Preferred”, Specialty Tier
In the final rule, CMS allows Part D sponsors, starting in 2022,
“to establish up to two specialty tiers and design an exceptions process that exempts drugs on these tiers from tiering exceptions to non-specialty tiers. Under this final rule, Part D sponsors will have the flexibility to determine which Part D drugs are placed on either specialty tier, subject to the ingredient cost threshold established according to the methodology we proposed and the requirements of the CMS formulary review and approval process […] we will codify a maximum allowable cost sharing that would apply to the higher cost-sharing specialty tier. Further, we will require that if there are two specialty tiers, one must be a ‘‘preferred’’ tier that offers lower cost sharing than the proposed maximum allowable cost sharing.”
CMS further noted that it would not allow tiering exceptions from a specialty tier to a non-specialty tier, in part, because to do so would
“likely increase Part D premiums as well as cost sharing for non-specialty tiers” (p. 5931) but instead it “will require Part D sponsors to permit tiering exception requests for drugs on the higher cost-sharing specialty tier to the lower cost-sharing, specialty tier.” (p. 5867)
CMS also stated that it,
“will codify a maximum allowable cost sharing permitted for the specialty tiers of between 25 percent and 33 percent, depending on whether the plan includes a deductible […] We will also maintain a specialty-tier cost threshold for both specialty tiers that is set at a level that, in general, reflects drugs with monthly ingredient costs that are in the top 1 percent” (p. 5867).
For a summary of all of the specialty tier changes, see, e.g., p. 5950.
The Center for Medicare Advocacy opposed this proposal, noting in our comments that it “will further complicate an already complicated benefit, and may not yield meaningful savings for beneficiaries.” The Part D benefit is already confusing in design and application and suffers from too many variables and plan flexibility; as CMS notes in the preamble, “a second specialty tier would be in addition to, not in lieu of, the six existing tiers for actuarially equivalent benefit designs” (p. 5934).
In response to concerns about heightening confusion, CMS responded:
“we believe that the risk of confusion will be outweighed by the potential for Part D sponsors to provide their enrollees with improved access to specialty-tier Part D drugs because improved competition for preferred specialty tier formulary placement results in better negotiations for Part D sponsors, which could result in lower cost sharing for Part D enrollees” (p. 5934).
- Require Part D Plans to Create a Beneficiary Real Time Benefit Tool (RTBT)
CMS requires that Part D plan sponsors implement a Beneficiary Real Time Benefit Tool (RTBT) by January 1, 2023, stating,
“The RTBT must allow enrollees to view the information included in the prescriber RTBT system, which will include accurate, timely, and clinically appropriate patient-specific real-time formulary and benefit information (including cost, formulary alternatives and utilization management requirements). This rule permits plans to use existing secure patient portals to fulfill this requirement, to develop a new portal, or use a computer application. Plans are required to make this information available to enrollees who call the plan’s customer service call center” (p. 5868).
While the Center for Medicare Advocacy expressed general support in our comments for requiring plans to implement an RTBT, we asserted, among other things that, “further efforts to provide individuals with such information should be made prior to enrollment in a given Part D plans.”
- Requirements re: Part D Drug Management Programs (DMP)
CMS implemented various provisions of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act. CMS notes that while the majority of Part D sponsors have already voluntarily implemented DMPs, starting in January 2022, Part D sponsors with be required to do so (p. 5865).
Among other things, CMS is: Finalizing clinical guideline criteria relating to individuals with history of opioid-related overdose; addressing beneficiaries’ education on opioid risks and alternative treatments; and implementing an automatic escalation to external review under a Medicare Part D Drug Management Program (DMP) for at-risk beneficiaries. Further, applicable in plan year 2022, CMS is including individuals with sickle cell disease in the definition of beneficiaries exempt from DMPs.
- Medicare Advantage Special Needs Plans (SNPs)
Pursuant the Bipartisan Budget Act of 2018, CMS implemented care management requirements through the development and implementation of models of care (MOCs), effective coverage contract year 2023. These requirements include: composition of the interdisciplinary care team (ICT); annual face-to-face encounter requirements (“between each enrollee and a member of the enrollee’s ICT or the plan’s case management and coordination staff on at least an annual basis, beginning within the first 12 months of enrollment, as feasible and with the individual’s consent [… and] must be either in-person or through a visual, real-time, interactive telehealth encounter.” (p. 5872); and requirements relating to models of care and individualized care plans, including the “requirement for benchmarks to be met for a MOC to be approved” (p. 5872).
IV. ADDENDUM: Codifying Requirements for Medicare Communications and Marketing
In CMS’ final Part C and D rule issued on January 19, 2021 (CMS–4190–F2, at 86 Fed Reg 5864), the agency codified many changes made in recent years to its marketing guidelines, including weakening the distinction between marketing and educational events. In addition, the agency continues to neglect issuing needed consumer protections surrounding the marketing of Medicare Advantage (MA) and Part D plans, including issuing guidance about Special Supplemental Benefits for the Chronically Ill (SSBCI), and fails to strengthen language access protections.
In 2019, CMS made substantive changes to its Medicare Communications & Marketing Guidelines (MCMG), including rescinding important consumer protections from the final 2020 marketing guidelines, without any public comment, resulting in watered down standards (as noted in a joint letter by the Center for Medicare Advocacy, Justice in Aging, Medicare Rights Center, and the National Council on Aging in August 2019). Substantively, the revised guidelines weakened the distinction between “marketing” events, which are designed to steer or attempt to steer potential enrollees, or the retention of current enrollees, toward a plan or limited set of plans; and “educational” events, which are designed to inform beneficiaries about MA, Part D or other Medicare programs. As noted in the joint letter, these changes appear to directly conflict with current law – specifically, the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) – by allowing educational events (which have fewer restrictions and no reporting requirements to CMS) to immediately turn into marketing events. As Center wrote in our comments to the proposed rule:
The distinction between educational and marketing events was created, in part, so that beneficiaries would not be pressured to enroll in an MA or Part D plan during an educational event. While the distant time and location requirements separating these two types of events might in-convenience an agent/broker who wishes to sell a product to a prospect who appears interested immediately following an educational event, this changes the tenor and dynamic of educational events. Presumably individuals show up for educational events because they are advertised as such; if they were interested in engaging in a possible sale they have opportunities to do so, whether it is through an advertised marketing session, through an individual agent/broker, or directly through a plan. If agents/brokers can immediately make a sale after an educational event, it turns such events that were designed to be without pressure into a hunting opportunity for agents/brokers or plan representatives. The previous requirements mandating that any marketing events occur distant in both time and place allowed a cooling off period for beneficiaries between an event where they came to learn and one in which they are being pressured to buy something. Now that this distinction is blurred, the same disclosures and reporting requirements that apply to marketing events should apply to educational events.
As discussed in an August 2019 Center Alert, many of the other revisions to the MCMG seemed designed to ease any burden on plans and downstream entities, with little to no benefit or protection for consumers. In some cases, the changes appear to actively weaken protections. In short, the 2019 MCMG revisions were seemingly made for the benefit of insurance plans and those that sell their products.
At the same time, procedurally, for purposes of public notice and comment, CMS departed from its longstanding practice of releasing an updated, final version for the coming year and instead issued a memo to plans that lists changes from the 2019 guidance and tells plans that for 2020, they should rely on the 2019 guidance as amended by the memo. As noted in the joint letter referenced above:
[i]nstead of adding some helpful clarifications and tightening of guidance that had appeared in the draft, the final product took a sharp U-turn. Not only were most of the additions that would have been protective of beneficiaries abandoned, important existing provisions were summarily dropped without warning or an opportunity to comment, and new provisions that either did not appear or were not flagged in the draft version were finalized, effectively disregarding the process for stakeholder input.
In the February 2020 proposed rule, CMS proposed to codify sub-regulatory guidance contained in the existing MCMG. As stated in our comments to the proposed rule, these revisions appear to violate the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), and asserted that CMS has an obligation to explain how these revisions do not do so. Further, since this was done without public comment, we asked CMS to disclose from whom they received requests to make these changes, and, if no such requests were made, why the agency did this. We strenuously objected to this change, and urged CMS to reverse this end-run around the MIPPA provisions mandating a distinction between marketing and educational events.
In the preamble to the final rule, CMS states that by codifying sub-regulatory guidance, it “did not propose to substantively change much of the policy” (p. 5981). CMS states: “To be clear, the policies we proposed to codify are not new; they are in the MCMG and were developed over time in concurrence with stakeholder feedback to implement and administer the current regulations” (p. 5981-2). We disagree with this interpretation. CMS deliberately avoids discussing many substantive changes that were made to the MCMG in 2019 by observing that a given issue “predates this rulemaking” (without regard to whether there was a meaningful notice and comment period prior to this rulemaking), thus sidestepping both explanation and accountability.
Marketing v. Educational Events
In the preamble to the final rule, CMS noted that “a commenter expressed concern” that the proposed rule would “allow agents or brokers to set up marketing appointments directly following educational events.” Instead of addressing our allegation that this change could violate MIPPA, CMS dodged the issue by stating that “[t]he policy decision to allow marketing and educational events to occur in a close physical and time proximity predates this rulemaking, as reflected in CMS’s August 6, 2019 Medicare Communications and Marketing Guidelines Update Memorandum […]” (p. 5989). The only rationale for this change CMS offers is that it:
made this change because it can be burdensome for beneficiaries to travel to events. If the beneficiary attends an educational event and wants to hear more plan specific information via a sales event, we believe it should be allowed to happen around the same time, rather than requiring the beneficiary to return on a different day or to a different venue. We, however, share the concern regarding the meeting type switching without the beneficiary being aware. As such, we are further strengthening the language proposed at §§ 422.2264(c)(2)(i) and 423.2264(c)(2)(i), to require that a beneficiary be made aware of a change from educational event to marketing event and given the opportunity to leave prior to the event beginning. In addition, if a beneficiary is attending a personal marketing appointment with a plan representative, the representative would need to have the beneficiary complete a scope of appointment (SOA) form prior to any discussion […]” (p. 5989).
It stresses credulity to assert that this change was made to cater to beneficiaries, rather that the Medicare Advantage and Part D industry. At the very least, CMS agreed with our comment about the inadequacy of the language in the proposed rule with respect to requiring “the agent/broker to provide an opportunity for the beneficiary to determine if they want to continue to a marketing event directly following an educational event. The commenter stated this was too vague, resulting in the agent/broker determining if the beneficiary has given consent.” (p. 5988). In the preamble, CMS states:
We agree with this concern in part and have strengthened the language at §§ 422.2264(c)(2)(i) and 423.2264(c)(2)(i) that requires agents and brokers make the beneficiary aware of a change in meeting type from educational to marketing and to provide the opportunity for beneficiaries to leave prior to the start of the marketing event. With this change from the proposed rule, we do not believe that the regulation text is vague or requires the agent, broker or other plan representative to guess whether a beneficiary wishes to remain for the marketing event. We also note that agents and brokers, as downstream entities of plans, must abide by the requirements in Subpart V of this rule, including §§ 422.2262(a)(1)(iii) and 423.2262(a)(1)(iii), which prohibits them from engaging in activities that could mislead or confuse Medicare beneficiaries (pp. 5988-9).
Unfortunately, CMS did not much improve the final language at §422.2264(c)(2)(i), which states: “If a marketing event directly follows an educational event, the beneficiary must be made aware of the change and given the opportunity to leave prior to the marketing event beginning” (p. 6107).
This still-vague requirement remains susceptible to manipulation by agents, brokers and other plan representatives. Absent a strict disclaimer or other required language that must be read or provided to attendees that clearly describes the scope and purpose of an educational event vs. a marketing event, this regulatory requirement is essentially useless. One need not employ much imagination to see how such transitions will be described by marketers as merely “shifting gears”, “getting into more detail”, etc., and how attendees will be reminded that they are “free to leave” at any time.
In short, CMS has both failed beneficiaries by codifying this change, and failed to explain how such change does not violate either the letter or the spirit of the law meant to protect consumers.
Medicare Advantage Supplemental Benefits, Including Special Supplemental Benefits for the Chronically Ill (SSBCI)
Since CMS relaxed rules governing MA uniformity requirements and Congress allowed plans to offer Special Supplemental Benefits for the Chronically Ill (SSBCI), the Center and other consumer advocates have urged CMS to issue guidance concerning the marketing of such benefits. As noted in our joint letter referenced above (and included in our comments to the proposed rule):
We also continue to be disappointed that this guidance fails to sufficiently address the marketing of MA plans with new supplemental benefits. Clarity on this issue is much needed, given the potential for this expanded authority to create incentives for sponsors to inappropriately steer or target potential enrollees. In failing to update the marketing guidelines to forcefully prohibit these practices, CMS is losing an important opportunity to protect people with Medicare.
The availability of supplemental benefits must not become merely or primarily a sales tool and sponsors must not be permitted to use supplemental benefits as a marketing de-vice to persuade beneficiaries into their plans. We are especially concerned that agents and brokers may ask individuals about their health status and use that information to steer them toward specific plans in violation of anti-discrimination rules. And this guidance continues to do nothing to assuage our concerns. CMS must not enable discriminatory practices through lax oversight.
We urge CMS to establish strict rules against such targeting and suggest that all shareable information about every plan be made available to potential enrollees, empowering them to choose the most appropriate coverage for their unique circumstances. In addition, the roll out of these new benefits must be closely monitored, as even the most thoughtful of policies can have unintended effects. To that end, both CMS and plan sponsors must be vigilant in watching for unusual spikes in enrollment, as well as other patterns that might indicate the existence of inappropriate outreach behavior. Such practices must be reported and corrected when identified.
In the preamble to the final rule, CMS dismissed such concerns:
[As we have stated before] MA plans are responsible for clearly identifying what will and will not be covered in the plan’s Evidence of Coverage (EOC). Any limitations on coverage should be clearly noted in the EOC. Organizations are encouraged to provide explanations to establish how a supplemental benefit, particularly a new or novel benefit, is primarily health related or how coverage of an item or service will be limited to when it is primarily health related. […] We believe that our requirements for how MA plans market their benefits and how the scope and rules for coverage must be disclosed annually to enrollees ensure that confusion is minimized for enrollees. As we monitor the MA program and complaints (submitted to 1–800-Medicare and otherwise), we will consider if additional guidance or rulemaking is necessary to address unforeseen confusion among beneficiaries (p. 5972).
Rather than being “encouraged to provide explanations”, we assert that plans should be required to do so. We do not agree that current requirements “ensure that confusion is minimized for enrollees” and strongly disagree that any confusion is “unforeseen”.
Later in the preamble, arguing that SSBCI do not warrant their own set of rules with respect to how they are described and marketed, CMS offers a limited concession:
The regulations that we proposed and finalized are as applicable to SSBCI as they are to other benefits covered and offered by an MA plan. However, we recognize that beneficiaries should be aware that SSBCI are not available to all plan enrollees and that the eligibility for these benefits is limited by section 1852(a)(3)(D) of the Act and §422.102(f); ensuring a clear statement of these limitations guards against beneficiary confusion or misunderstanding the scope of these new benefits. To that end, a new requirement for a disclaimer to be used when SSBCIs are mentioned is being finalized at § 422.2267(e)(32). (p. 5992).
The language of the final rule including this disclaimer is as follows (pp. 6109-112):
§ 422.2267 Required materials and content.
(e) CMS required materials and content. The following are required materials that must be provided to current and prospective enrollees, as applicable, in the form and manner outlined in this section. […]
(32) SSBCI Disclaimer. This is model content through which MA organizations must:
(i) Convey the benefits mentioned are a part of special supplemental benefits.
(ii) Convey that not all members will qualify.
(iii) Include the model content in the material copy which mentions SSBCI benefits.
While CMS did make this minor nod to consumer education in the final rule, it continues to downplayed concerns about the potential for beneficiary confusion and inappropriate steering or targeting of beneficiaries. In the absence of adequate CMS guidance concerning how SSBCI should be marketed, the Center for Medicare Advocacy issued a document entitled New Medicare Advantage Supplemental Benefits: An Advocates’ Guide to Navigating the New Landscape in October 2019. As we noted in the Advocates’ Guide, “While the new MA supplemental benefits might be attractive to beneficiaries, they should approach them with eyes wide open. Such benefits will not be available to everyone and have few restrictions concerning how they are marketed, and are therefore likely to make informed decision-making on the part of the consumer more difficult.” This remains true, particularly absent further action by CMS.
One of the changes made in the 2019 revisions to the MCMG was the removal of several required disclaimers in certain plan materials, including the “Availability of Non-English Translations.” As noted in the joint letter referenced above, the disclaimer was “short and had only been required on a subset of communications [… and] [e]xcept for a handful of small markets, the disclaimer was only required in one language, Spanish.” As noted by our organizations, “In the 2019 MCMG, CMS harmonized the wording of the disclaimer with the wording required by Section 1557 regulations to ensure that this requirement would place no additional burden on plans.”
The joint letter continued:
We are at a loss to understand the rationale for removing this simple requirement to place at most two lines of text in Spanish on important documents so that Spanish speakers will know the availability of assistance. The burden on plans is miniscule and the need to alert limited-English proficient beneficiaries that they can receive help is great. Beneficiaries must be made aware that interpreter services and translated materials are available, if this assistance is to be effective.
In our comments to the proposed rule, we noted that we were pleased that the rule reincorporated instructions to plans regarding disclaimers concerning the availability of non-English translations on materials and content, but remained puzzled as to why it was removed for the 2020 plan year, without explanation. Noting that here is a growing need for stronger translation requirements, we urged CMS to further remind plans about their obligations to comply with Section 1557 notice requirements, including “taglines” or disclaimers in the top 15 languages and to conduct enforcement and oversight when appropriate.
In the preamble to the final rule, though, CMS reversed course once again. In response to comments about the Availability of Non-English Translations disclaimer in the proposed rule, CMS stated that it chose not to finalize the proposal, and passes the buck to another federal agency:
As of this final regulation, the Office for Civil Rights (OCR) finalized the regulations implementing section 1557 of the ACA without requiring disclaimers. Acknowledging OCR’s finalized regulations did not include language-based disclaimers, CMS will not finalize the proposed Availability of Non- English Translation disclaimer, proposed §§ 422.2267(e)(32) and 423.2267(e)(34), in this final rule. To clarify, there would be no requirement in this regulation for the Availability of Non-English Translation disclaimer; however, plans must still abide by OCR’s current or future requirements on this topic as they have the authority to impose such requirements. As such, CMS believes future rulemaking regarding non-English disclaimers, if appropriate, is best addressed by OCR, as those requirements would be HHS-wide instead of limited to CMS. […] CMS has determined that deferring to OCR’s oversight and management of any requirements related to non-English disclaimers is in the best interest of the Medicare program. (p. 5995)
Further, in response to comments that CMS go beyond even this minimal requirement and strengthen plan sponsors’ language access obligations and “require using a threshold of five percent or 1,000 people in the service area, whichever is lower, of a population speaking a language other than English to trigger translations for vital documents”, CMS declines. The agency noted that it “previously considered a similar standard” and determined that the use of such a standard “would result in a significant increase in the number of plans required to translate and the number of languages required for translation. Absent definitive evidence to support the sharp increase, this would result in insupportable costs and burden” similar to the commenters’ suggestion (p. 5995-6).
Rather than focus on plan sponsor “burden,” CMS should immediately prioritize consumer education and access to care; including minimal yet required disclaimers should be a bare minimum.
February 4, 2021 – D. Lipschutz