MODEL COMMENTS ON LINGUISTIC ACCESS TO MEDICAID MANAGED CARE:  RESPOND TO NATIONAL HEALTH LAW PROGRAM BY NOVEMBER 27
No. 98-20, November 20, 1998

The Health Care Financing Administration (HCFA) proposed regulations on September 9, 1998 governing Medicaid managed care under the Balanced Budget Act (BBA).  The regulations do not adequately address cultural and linguistic access to health care programs and services for people with low English proficiency.  Failure to provide culturally and linguistically appropriate health services contributes to poor health outcomes.  There are only three general provisions in the lengthy regulations that address cultural and linguistic services and these do not go far enough in identifying a health care provider's legal obligations to provide non-discriminatory access.

Comments on the proposed regulations are due to HCFA by 5:00 p.m. EST on November 30, 1998.  The National Health Law Program (NHeLP) has drafted comments requesting stronger rules promoting language access, which advocates may sign on to or use to prepare their own comments.

This e-mail message summarizes the draft comments, followed by the full text.  To sign on to the comments, contact Claudia Schlosberg at NHeLP-DC by November 27 via e-mail (schlosberg@healthlaw.org) or fax (202-289-7724), or call if you have questions or suggestions (202-289-7661).

Summary of Comments

The U.S. Department of Health and Human Services (HHS) has long recognized that the Civil Rights Act's Title VI prohibition of discrimination based on national origin requires linguistic accessibility to health care.  Yet the HCFA Notice of Proposed Rulemaking (63 Fed. Reg. 52078, Sept. 29, 1998) for Medicaid managed care contains only three short, general provisions regarding cultural and linguistic access.  These provisions do not go far enough to ensure that health care providers provide qualified interpreter services and translated materials at no cost to patients.

The proposed rule's three general provisions require state agencies to (1) identify the languages other than English that are spoken and to make materials available in those languages; (2) make translation services available to patients and potential enrollees; and (3) tell patients and potential enrollees how to obtain materials and services in their own language.  These are critically important goals but the regulations should spell out specifically-proscribed standards and methods that put real teeth into what are now vague mandates.  The comments ask HCFA to strengthen these mandates in several important ways, and to add other needed regulations.

The proposed rule requires states to determine the "prevalent languages" spoken in a geographic area and to make information available in those languages.  HCFA also should identify a reliable method that states must use to determine prevalent languages.  One suggested method is that used by the California Department of Health Services or, as a minimum standard, HCFA should require that information be available in languages spoken by five percent or more of the population in a Medicaid managed care entity's service area.

In addition, HCFA should strengthen the regulations by requiring the health care providers to implement policies and practices such as the following:

• have written procedures for identifying language needs of patients and for providing interpreter services;
• provide staff training on cultural competence;
• prohibit use of minors to translate;
• prohibit the use of family and friends to translate without first offering the patient no-cost translation services; and
• make bilingual care givers available to the greatest extent possible.

The proposed rule requires managed care organizations to provide toll-free numbers that have adequate interpreter capability; it should also require outreach to patients with limited English proficiency to inform them of the toll-free-number service, and in addition should require free interpreter services during the grievance process.

In addition to strengthening the proposed regulations, the comments ask the federal agency to incorporate other rules needed to make managed care culturally and linguistically competent.  The preamble to the proposed rule (63 Fed. Reg. 52029, Sept. 29, 1998), but not the rule itself, discusses "cultural competency" yet leaves the term undefined.  This lack of definition opens the door to an erroneous interpretation that simply providing translation services makes health care culturally competent.  Cultural competency is "awareness of the culture of the population being served" and requires, in addition to language access materials and services:

• full attention given to racial and ethnic minorities throughout the health care delivery process;
• an appropriate number of care givers who are aware of the values, beliefs, traditions, customs, and parenting styles of the community; and
• knowledge among providers of any enhanced medical risks peculiar to the racial, ethnic, and socioeconomic factors of the populations being served.

The comments ask HCFA to include such specific cultural competency requirements in the regulations themselves.

Finally, the comments call upon HCFA to add provisions to ensure that national data is gathered about the race and ethnicity of Medicaid patients and on the numbers of Medicaid providers and staff who speak a language other than English.

The full text of the draft comments appears below. To sign on, please contact Claudia Schlosberg at NHeLP-DC by November 27 via e-mail (schlosberg@healthlaw.org) or fax (202-289-7724), providing the following information:

Organization:

Contact:

Address:

Telephone:

E-mail:

Draft of Comments

November XX, 1998

Health Care Financing Administration
Room 413 -G
Hubert H. Humphrey Building
200 Independence Avenue, S.W.
Washington, D.C. 20201

Attention: HCFA-2001-P
Re: Comments regarding Cultural and Linguistic Competency Requirements in the Balanced Budget Act—Medicaid Managed Care Proposed Regulations
(HCFA-2001-P)

To Whom It May Concern:

The National Health Law Program (NHeLP) submits these comments on behalf of itself and the organizations listed below in response to the Notice of Proposed Rulemaking, published on September 29, 1998, concerning implementation of the Balanced Budget Act's Medicaid Managed Care provisions.  These comments address only those provisions relating to the responsibility of the state and the Managed Care Entity (MCE) to provide culturally and linguistically competent services to beneficiaries.

The National Health Law Program is a non-profit, civil rights organization that advocates for justice in health care for low-income people.  For over 30 years we have provided technical expertise to thousands of attorneys and providers serving low-income Medicaid beneficiaries.  These comments not only reflect our technical legal expertise in Medicaid and managed care, but our considerable knowledge of the legal obligations of federally funded health providers to comply with Title VI of the Civil Rights Act and other laws that prohibit discrimination based on national origin.

Summary and Background

Title VI of the Civil Rights Act states: "No person in the United States shall, on ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."⁽¹⁾  Because federal funding of health care is pervasive, nearly every health care provider is bound by Title VI. The U.S. Department of Health and Human Services (HHS) has long recognized that Title VI requires linguistic accessibility to health care.  In addition, the Office for Civil Rights (OCR) within HHS has consistently interpreted Title VI to require the provision of qualified interpreter services and translated materials at no cost to patients.

Existing Medicaid regulations explicitly require state programs to operate in a manner consistent with Title VI.⁽²⁾  The Health Care Financing Administration requires states to communicate with beneficiaries both orally and in writing in a language understood by the beneficiary and to provide interpreters at Medicaid hearings.⁽³⁾   Medicaid regulations also provide heightened protections for people who reside in long term care facilities and to children and youth through Medicaid Early and Periodic Screening, Diagnosis and Treatment (EPSDT).⁽⁴⁾

Although the preamble to the September 29, 1998 proposed rules asks states to pay close attention to ethnic and racial minorities throughout the health care delivery process, the regulations contain only three provisions that make explicit reference to cultural and linguistic competency requirements.  While the proposed rules do call for each participating provider to ensure that services are provided in a culturally competent manner, overall, the rules lack the detail needed to ensure that States and MCE's understand their obligations to ensure culturally and linguistically appropriate services for Medicaid beneficiaries at all levels of the health care delivery system.

Despite the clear requirements under Title VI to ensure that health programs are linguistically and culturally accessible, our experience and research demonstrate that in communities throughout the country, providers continue to muddle through their contacts with limited-English speakers, relying upon their own rudimentary skills, patients' family members, hospital service employees and other untrained interpreters.  Too often, these practices reflect providers' lack of familiarity with their legalobligations under federal and state laws.⁽⁵⁾

The failure to provide culturally and linguistically appropriate health services contributes to poor health outcomes for racial and ethnic minorities.  Research increasingly shows that racial and ethnic minorities face more significant health risks than the population in general.  Over 50 percent of Medicaid beneficiaries are members of racial or ethnic minority groups.  Moreover, the numbers of limited English speaking Medicaid beneficiaries are growing dramatically, and these trends will continue.  In short, now is the time for HCFA to provide clear guidance to states and MCEs to ensure that beneficiaries are served in a culturally competent manner in compliance with the law.  The need for clear rules is even greater in managed care because managed care's goal of reducing costs may prevent or minimize investment in services that will improve the cultural competency of the organization.⁽⁶⁾

Section by Section Analysis

INFORMATION REQUIREMENTS—proposed 42 C.F.R. § 438.10(b), 63 Fed. Reg. at 52078

Comment:  This rule requires state agencies to establish a methodology for determining the "prevalent languages" spoken by populations in a geographic area and to make information available in those languages.⁽⁷⁾  However, the regulation does not identify the methodology for determining prevalent languages.  We suggest that the methodology for determining prevalent languages be included in the regulation.  Specifically, we recommend that HCFA:

• promulgate beneficiary protections modeled after the standard used by the California Department of Health Services.  This standard calls for a numeric threshold of 3,000 recipients who are limited English proficient in an MCE's service area, or 1,000 recipients in a postal Zip code, or 1,500 such recipients in any two contiguous Zip codes. MCEs would be required to provide translated written materials for any groups that meet the threshold, and to have translation services available for each enrollee or potential enrollee, regardless of numeric threshold.  At the very least, we suggest a regulation providing that, at minimum, states will assure that MCEs make written information available in languages spoken by 5 percent or more of the population in the MCE's service area.

• coordinate these regulations with the HHS Office for Civil Rights by explicitly integrating minimum guidelines set forth in OCR's January 1998 memorandum.⁽⁸⁾   The regulation should be amended to require MCEs to:

1. have procedures for identifying language needs of patients;
2. develop written procedures regarding interpreter services;
3. disseminate procedures to staff and network providers;
4. provide staff training on cultural competence;
5. prohibit the use of minors to translate;
6. prohibit the use of family and friends to translate without first making the beneficiary an offer of no cost translation services;
7. make bilingual care givers available to the greatest extent possible and assure the availability of qualified interpreters.
8. clearly place MCEs on notice of their obligations to comply with the civil rights laws by incorporating reference to the Title VI statute and  regulations, 45 C.F.R. § 80 et seq.
9. adopt requirements similar to nursing home protections, including, for example, requirements that MCEs fully inform members in a language that they can understand of their total health status, including their medical condition.⁽⁹⁾

Rationale:  The proposed regulation attempts to satisfy dual goals of allowing maximum flexibility for states and providing better beneficiary protections.  While such a balance may be possible to achieve, this rule weighs too heavily in favor of state flexibility at the expense of beneficiary protections for an extremely vulnerable population.  By simply requiring that some methodology be used to determine prevalent languages, the regulation conceivably allows a state agency to abide by this regulation yet still exclude large populations of beneficiaries with limited English proficiency.  The fact that a state employs a methodology does not imply that the methodology is reasonable or sound or that the state is in compliance with the requirements of Title VI of the Civil Rights Act.  In short, deciding which populations of beneficiaries are to receive translated materials is a problem that calls for a minimum regulatory standard.  States can then be afforded flexibility to vary the standard as long as it continues to meet the pertinent federal laws.

ACCESS STANDARDS.  AVAILABILITY OF SERVICES—proposed 42 C.F.R. § 438.306(e)(4), 63 Fed. Reg. at 52083

Comment:  The regulation should read as follows:

Access Standards
438.306 Availability of services.

(e) Provision of services. The State must ensure that each MCO complies with the requirements of this paragraph.

(4) Cultural considerations. The MCO ensures that services are provided in a culturally competent manner to all enrollees. Cultural competency includes, but is not limited to, the following:

(i) The language requirements of § 438.10;
(ii) Full attention is given to racial and ethnic minorities throughout the health care delivery process;
(iii) The MCO's network of providers includes an appropriate number of care givers who are knowledgeable about the values, beliefs, traditions, customs, and parenting styles of the community;
(iv) Network providers have knowledge of any enhanced medical risks associated with the racial, ethnic, and socioeconomic characteristics of the populations beings served.

Rationale:  While the proposed regulation laudably includes the concept of cultural competency, the term is left undefined.  The regulatory language, "including at least the language requirements of § 438.10," leaves open a possible interpretation that simply providing translation services is adequate to meet the requirement.  Moreover, translation services are only a part of what constitutes culturally competent health care delivery.  On the other hand, the preamble (63 Fed. Reg. at 52045) provides indispensable guidance to MCOs on cultural competency.  In general, cultural competency requires "awareness of the culture of the population being served."  Specifically, the preamble notes:

• State agencies should require managed care organizations to give full attention to racial and ethnic minorities throughout the health care delivery process.
• Translation services must be provided when language barriers exist, including sign language for the hearing impaired and braille for those with impaired vision.
• Managed care organization's network of providers should include an  appropriate number of care givers who are aware of the values, beliefs, traditions, customs, and parenting styles of the community.
• Network providers should have knowledge of any enhanced medical risks peculiar to the racial, ethnic, and socioeconomic factors of the populations beings served.

This information should be incorporated into the regulation so that HCFA's intent will not be lost or ignored.⁽¹⁰⁾

INFORMATION ABOUT THE GRIEVANCE SYSTEM—proposed 42 C.F.R. § 438.414(b)(4), 63 Fed. Reg. at 52088

Comment:  The requirement that MCOs provide toll-free numbers and have adequate TTY and interpreter capability are important and should be preserved.  In addition:

• HCFA should include a requirement that MCOs engage in some outreach to beneficiaries with limited English proficiency to inform them of the service.  Such outreach, to the extent possible, should be conducted in the beneficiaries' language.

Rationale:  The mere existence of telephone interpreter capability does not ensure that beneficiaries with limited English proficiency will know of or use the phone system.

• We strongly urge these regulations be amended to require interpreters, at no cost to enrollees, during the grievance process.

Rationale: HCFA's State Medicaid Manual requires states to provide interpreters at Medicaid fair hearings.⁽¹¹⁾  This due process protection is no less important during the MCO-level grievance process.

Additional Protections Are Needed

All of the following suggested additional regulations are tied to existing requirements of federal civil rights and/or Medicaid law, and, as such, should be no surprise to states or Medicaid-participating MCEs:

• At sec. 438.700(a)(3), HCFA should add as a basis for sanctions:   "Acts to discriminate among enrollees on the basis of their health status, race, color or national origin, or requirements for health care services. . ."

Rationale:  The regulations provide that states cannot enter into or renew  a contract with an MCO until the state has established intermediate sanctions for violations.⁽¹²⁾   The omission of Title VI requirements from the list of sanctionable activities reduces the likelihood that MCOs will comply with cultural competency requirements.

• Marketing regulations need to be amended to require that enrollment activities and enrollment brokers have capacity to communicate effectively with limited English speaking beneficiaries.  The regulation also needs to require states to assure that marketing materials are being translated throughout the service area covered by the managed care program.⁽¹³⁾

• A regulation should require MCOs to record information by race/ethnicity of the enrollee.

Rationale:  The civil rights regulations require HCFA to collect data sufficient to enforce Title VI of the Civil Rights Act.⁽¹⁴⁾  The agency will not be able to effectively enforce the civil rights laws if it does not collect this information.

• A regulation (or at least the preamble) should reflect HEDIS 3.0 standards for reporting on providers and staff who speak a language other than English.⁽¹⁵⁾

• Provider network regulations should include a provision on nondiscrimination against providers who serve limited English proficient populations.⁽¹⁶⁾

• Provider network regulations need specifically to incorporate for states and MCOs the statutory requirements for accessible providers in the Vaccines for Children program.⁽¹⁷⁾

Thank you for this opportunity to comment.

Sincerely,

The National Health Law Program
National Immigration Law Center

Notes

10.    For the preamble discussion to this regulation, see 63 Fed. Reg. at 52045. For the proposed regulation itself, see 63 Fed. Reg. at 52083.

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