Following its appearance in Centers for Medicare and Medicaid Services (CMS) Proposed Rule, we’d like to visit the “push-me / pull-me” history surrounding the Multi-Language Insert (MLI) and its likely reinstatement. Heads have been spinning on what’s really been required the last few years as we’ve seen the essential MLI document emphatically introduced as a foundational requirement, then mysteriously vanish. What seemed “core” language to required documents like the Annual Notice of Change (ANOC) and the Evidence of Coverage (EOC), vanished without a word. Now it appears to be coming back, which is definitely a good thing for Medicare beneficiaries. But what is the MLI really, and how did the MLI’s “now you see me, now you don’t” whiplash actually happen?

What is the MLI requirement for Medicare?

CMS instituted a requirement in 2012 for Medicare Advantage Organizations (MAOs) and Part D Plans to communicate the availability of free language interpreters for anyone contacting their health plan. Free interpreter availability was communicated through the Multi-Language Insert, which CMS required for delivery with certain benefits and enrollment documents. To facilitate the rollout, CMS provided a Multi-Language Insert template to health plans, containing translations of the following statement in the top 15 languages used in the United States:

“We have free interpreter services to answer any questions you may have about our health or drug plan. To get an interpreter, just call us at [1-XXX-XXX-XXXX]. Someone who speaks [language] can help you. This is a free service.”

Further, CMS instructed that additional languages would be required if 5% or more of a plan’s enrollees in a service area spoke other languages not already displayed in the template. The MLI was destined to become a critical communication asset for non-English speaking persons to convey interpreter availability.

Why the confusion over Multi-Language Inserts?

The discrepancy arose when two regulatory entities began swimming in the same content. Enter the first joiner to the discussion in 2010, the Office for Civil Rights (OCR), whose mission (among many things) is to propagate fairness, equity and inclusion, and protect persons from discrimination in certain health care and social service programs. The OCR was first in the arena opening the discussion, introducing language required on “significant” materials such as the EOC, ANOC, and even reduced verbiage on smaller advertisements. But CMS was first to finalize the requirement. With this in mind, below is a 10,000-foot view illustrating how these industries inadvertently bumped heads, and how the cards later fell creating both overlaps and eventually gaps:

• 2010: The Office for Civil Rights (OCR) created their own tentative varieties of language requirements, which also communicated interpreter availability, to be placed on “significant” communications. (However, the OCR’s language requirements weren’t finalized immediately.)
• 2012: Almost simultaneously, CMS implemented a similar interpreter notification requirement through plan distribution of the MLI.
• May 2016: The OCR issued a Final Rule implementing Section 1557 of the Patient Protection and Affordable Care Act (anti-discrimination) which then required their language varieties about interpreter services to be included on “significant” MAO documents.
• June 2016: CMS enhanced their MLI requirement to include enrollment forms.
• August 2016: CMS determined inherent duplication between the OCR’s notifications, and CMS’ MLI. Therefore, CMS removed the Multi-Language Insert requirement, which communicated free interpreter availability.
• June 2020: Through a new OCR Final Rule, the OCR removed their free interpreter language requirement.
• January 2021: CMS was unable to finalize a new interpreter disclaimer requirement in time for the release of the 2021 Final Rule.

This lack of coordination between the regulatory bodies and simply timing in their processes, meant that the industry was left without active guidance in place by either CMS or the OCR for materials language communicating interpreter availability.

This oversight drove an uptick in complaints against plans through CMS’ complaint center (called the “Complaint Tracking Module,” or CTM) which can impact health plans’ Star Ratings – which, in turn, can lower a plan’s compensation if Star Ratings go significantly down.

Direct and indirect impact for plans

CMS’ estimates for reinstatement of the MLI may underestimate impact to plans for re-implementing such as time expense, including:

• More pages to be produced
• Increase in postage for hardcopy mailings
• Document design updates and costs

Let’s consider how this overall language abandonment may have impacted health plans through indirect means. Considering CMS’ acknowledged gap in this regulation, did CMS happen to give credit to plans on the complaint measures impacting their Star Ratings? We know lower Star Ratings equate to lower payments to health plans. With 12.2% of persons over age 65 speaking a non-English language in the home, which ratio of complaints were attributed to enrollees’ communications issues from not realizing they could still access interpreters? Further, did a lack of understanding impact their access to care (another Star Ratings measure)? And what degree of healthcare services measured by Star Ratings were not obtained because beneficiaries didn’t realize an interpreter was available to answer benefit questions? The domino effect of the interpreter availability gap into Star Ratings may never be separately analyzed, but it’s probably measurable.

Be prepared for the return of MLI.

Presuming MLI reinstatement, here are three critical questions every plan should be discussing right now.

1. How will the MLI requirement impact your planning process and production time and costs for both you and your vendor?
2. How will your organization meet the MLI inclusion requirements? Embed the MLI in the documents?
3. Produce and distribute as an insert?
4. Will your method of inclusion vary between electronic document distribution versus hardcopy mailings? (Per the proposed reinstatement, only one MLI is required when enclosed with multiple required documents, which could save on paper/mailing/production for hardcopy delivery)?
5. Review what you are doing today. Did your organization choose to omit the MLI when the requirement appeared to be removed? Many kept it in place, while others opted out given the apparent permission for cost savings or other preferences.

How Toppan Merrill can help

Toppan Merrill has experts who specialize in CMS-driven communications for document production and distribution. With a highly sophisticated product suite, and a team each averaging over 15 years’ experience in the industry and Medicare-related document creation, Toppan Merrill is accustomed to accommodating CMS’ regulatory changes, taking the burden off your team. We welcome your questions at [email protected] and look forward to discussing how we can help your organization simplify your annual documents processes.