CMS Issues Guidance On Language Accessibility Requirements

On March 30, 2016, CMS released a Guidance and Population Data for Exchanges, Qualified Health Plan Issuers, and Web-Brokers to Ensure Meaningful Access by Limited-English Proficient (LEP) Speakers. The guidance imposes no new regulatory requirements but rather compiles in one place guidance on all language access requirements that have appeared in earlier rules. What is new, however, is a state-by-state list of the top 15 non-English languages in each state and of languages spoken by 10 percent of a state's population, as well as translated taglines in each of the 63 languages that appear on one of the lists.

Currently the ACA and related statutes and regulations impose five different language accessibility requirements which are reviewed in the guidance. First, exchanges and qualified health plans (QHP) insurers, as well as web brokers that have been registered for at least one year, must provide oral and written translation services, including telephonic interpreter services in at least 150 languages.

Second, exchanges, and—as of the 2017 open enrollment period—QHP insurers and web brokers who have been registered with an exchange for at least a year must provide taglines indicating the availability of language access services in the top 15 non-English languages in their state; these taglines must appear on website content and on documents critical for obtaining insurance coverage or access to health care services. Critical documents are documents that under state or federal law must be provided to qualified individuals, applicants, qualified employers or employees, or enrollees. They include:

• Applications;
• Consent, grievance, appeal, and complaint forms;
• Correspondence containing information about eligibility and participation criteria;
• Notices pertaining to the denial, reduction, modification, or termination of services, benefits, non-payment, and/or coverage;
• Explanations of benefits or similar claim processing information;
• Rebate notices;
• Notices advising individuals of the availability of free language assistance;
• Summaries of benefits and coverage;
• Formulary drug lists;
• Provider directories;
• Insurance policies, insurance contracts, evidences of coverage, or similar legally-required documents; and,
• Documents that require a signature or response.

Where an entity's service area covers more than one state, the top 15 languages may be determined by aggregating the top 15 languages spoken by all LEP individuals in the total population of all states. The tagline addendum to the summary of benefits and coverage does not count against the otherwise absolute and unmovable eight page limit imposed on that document.

Third, as of the 2017 open enrollment period, exchanges and QHP insurers, as well as web brokers registered with the exchange for at least a year, must translate certain web content into languages spoken by an LEP population that reaches 10 percent or more of the population of any relevant state. Only Spanish reaches this threshold, and only in Texas and California. For exchanges and web brokers this requirement applies to all web content intended for qualified individuals, applicants, qualified employers and employees, and enrollees. For QHP insurers it only applies to critical documents.

Fourth, QHP insurers must provide taglines on internal claims and appeals and external appeals documents and summaries of benefits and coverage in non-English languages if 10 percent or more of the population residing in a county is literate in the same non-English language. This requirement only applies to four languages: Spanish, Navaho (in one county in Arizona), Chinese (in San Francisco), and Tagalog (in two counties in Alaska). These languages will generally also be among the top 15 languages in the state for which taglines must otherwise be included.

Fifth and finally, exchanges, QHP insurers, and other entities are subject to a general requirement to provide information in an accessible manner to LEP individuals under the federal civil rights laws, including section 1557 of the Affordable Care Act and Title VI of the Civil Rights Act of 1964 and implementing regulations.

The top-15 language list was drawn from American Community Survey census data. Where language groups were identified that could not be unbundled, like "African," CMS moved on to the next language in the list — although "Kru, Ibo, and Yoruba" could not be unbundled and the three were listed separately, presumably meaning that in states where they appear on the top-15 list, 17 taglines will be needed.

Where language headings described a group of dialects, such as Bantu or Sudanic, the most common dialect was used for the translation. Where French Creole was identified as a language it was interpreted as Haitian Creole, except in Louisiana where it was interpreted as French. Most primarily oral Native American languages were omitted as their speakers generally read English. Where Mandarin and/or Cantonese are listed, traditional Chinese characters are to be used.

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