January 11, 2011
Dr. Don Berwick
Administrator
Centers for Medicare and Medicaid Services
Room 445-G Hubert Humphrey Building
200 Independence Ave. SW
Washington, DC. 20201
File Code: CMS–4144–P
Dear Dr. Berwick:
On behalf of National Partnership for Women & Families, I wish to comment on the 10 percent
threshold for translating Medicare plan materials that is codified in the proposed rule pertaining
to changes to the Medicare Advantage and Medicare Prescription Drug Benefit Programs for
contract year 2010. The National Partnership represents women and families across the
country, including the millions who have limited English proficiency (LEP).
The Centers for Medicare and Medicaid Services (CMS) has issued proposed regulations that
would require private Medicare plans (Part C and D plans) to translate written materials only into
languages spoken by 10 percent of the population in the plan’s service area. Under this
standard most of the approximately three million LEP Medicare enrollees would not get
translated materials from their plans. Even Spanish-speaking enrollees would be left out in
many states. This standard is simply too high – comprehensive language services are critical
to high quality, patient- and family-centered care. Language barriers limit the ability of patients
and providers to communicate with each other and consequently lead to a number of problems
ranging from uninformed or mistaken consent, unnecessary tests and emergency room visits,
less preventive care and fewer screenings, and ultimately poorer health outcomes and higher
costs.
While we recognize that CMS has long held these plans to a 10 percent standard contractually,
this is the first time that the 10 percent threshold has been codified at the level of federal
regulations. This high threshold does not align with LEP guidance from the Department of
Health and Human Services (HHS), which lays out a series of factors to consider when
determining whether translated materials must be provided by an organization covered by the
federal civil rights laws. The guidance establishes a “safe harbor” for organizations – like
Medicare plans – under which plans that provide translations whenever an LEP language group
is five percent to be served or likely to be served/affected or encountered, or 1,000 persons,
whichever is less, are considered compliant. Given the role CMS plays in overseeing Medicare
Parts A&B, Medicaid, and, with the recent reorganization, the Center for Consumer Information
and Insurance Oversight (CCIIO) and all the programs operated by CCIIO, we are very
concerned that this threshold could set a troubling precedent and eventually erode existing and
future protections for LEP individuals across the health care arena.
1875 connecticut avenue, nw ~ suite 650 ~ washington, dc 20009 ~ phone: 202.986.2600 ~ fax: 202.986.2539
email: info@nationalpartnership.org ~ web: www.nationalpartnership.org
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We strongly encourage CMS to instead establish a standard that would require materials to be
translated into languages spoken by the lesser of five percent of the population in the plan’s
service area or 500 persons in the service area. Although the HHS LEP guidance sets their
safe harbor per capita threshold at 1,000 persons, the Department of Labor’s LEP guidance has
recommended a safe harbor per capita threshold of 500 persons. We urge you to take
advantage of this opportunity to adopt a more generous standard which takes the best
components of existing standards to serve as a model for other programs. Such a requirement
will help ensure that LEP Medicare beneficiaries will have access to the same high quality care
and benefits as everyone else.
We greatly appreciate this opportunity to comment and look forward to working with you and the
agency’s staff on this and other issues critical to the delivery of comprehensive patient-and
family-centered care in the future. If you have any questions please contact Christine Monahan
at (202) 986-2600.
Sincerely,
Debra L. Ness
President