The final Medicaid managed care regulations at 42 C.F.R. §438.10(b), provide that a State Medicaid agency must:

"(4) Make oral interpretation services available and require each [MCO] to make those services available free of charge to the recipient to meet the needs of each enrollee and potential enrollee." 66 Fed. Reg. 6407 (January 19, 2001). The regulation does not further define the term "oral interpretation services." It does, however, refer to the OCR Policy Guidance as a tool that "may be helpful to States in determining how to meet this requirement." 66 Fed. Reg. 6244 (January 19, 2001).

(a) In General — Contractor shall comply with, and ensure that providers (as defined in §110(f)(1)) participating in Contractor’s provider network comply with, the following requirements relating to oral interpreter services:

(1) subsection (b) (relating to Applicable Federal Law);

(2) subsection (c) (relating to Right to Oral Interpreter Services);

(3) subsection (d) (relating to Notice of Right to Oral Interpreter Services);

(4) subsection (e) (relating to Identification of Enrollees with Limited English Proficiency);

(5) subsection (f) (relating to Furnishing of Oral Interpreter Services);

(6) subsection (g) (relating to Complaint and Grievance Procedures); and

(7) subsection (h) (relating to Data Collection and Reporting).

(b) Applicable Federal Law

Commentary: The following illustrative language sets forth the statutory and regulatory duties under Title VI of the Civil Rights Act of 1964 relating to nondiscrimination on the basis of national origin that apply to Contractors receiving federal Medicaid funds. Of course, Title VI prohibits discrimination on other bases as well. Note that Title VI applies not only to Contractors, but also to Purchasers that receive and disburse federal Medicaid funds.

(1) Title VI — Contractor shall comply with, and ensure that providers participating in Contractor’s provider network comply with, Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, 45 C.F.R. Part 80.

(2) OCR Policy Guidance — For clarification of the responsibilities of health plans and providers that receive federal financial assistance in fulfilling their responsibilities to individuals with limited English proficiency under Title VI of the Civil Rights Act of 1964, see the Policy Guidance issued by the Office for Civil Rights of the U.S. Department of Health and Human Services, Title VI Prohibition Against National Origin Discrimination As It Affects Persons with Limited English Proficiency (65 Fed. Reg. 52762, August 30, 2000), www.hhs.gov/ocr/lep/guide.html.

(c) Right to Oral Interpreter Services

Commentary: The following illustrative language would impose a duty on Contractor to ensure the provision of oral interpreter services to each enrollee with limited English proficiency, unless the enrollee refuses the services. The language would require the documentation of such refusals only in the case of clinical encounters between enrollees and providers participating in Contractor's provider network; Contractor would not be required to document such refusals in non-clinical contexts.

(1) Duty to Provide Oral Interpreter Services — Contractor shall provide, or arrange for the provision of, oral interpreter services as described in subsection (f) to each enrollee with limited English proficiency (as defined in §110(d)) without charge, whether or not the enrollee with limited English proficiency speaks a language that is a threshold language (as defined in §110(j)), unless the enrollee refuses such services under paragraph (2).

(2) Enrollee Right to Refuse Oral Interpreter Services

(A) Right — An enrollee with limited English proficiency has the right to refuse oral interpreter services at each point that such services are offered by Contractor under subsection (f)(1).

(B) Documentation¹³ — At each clinical encounter at which an enrollee with limited English proficiency refuses oral interpreter services offered by a provider participating in Contractor’s provider network, the provider shall document the offer and refusal of such services in the enrollee's medical records.

(d) Notice of Right to Oral Interpreter Services¹⁴

Commentary: The CLAS standard #5 (65 Fed. Reg. at 80875) is: "Health care organizations must provide to patients/consumers in their preferred language both verbal offers and written notices informing them of their right to receive language assistance services."

The final Medicaid managed care regulations, 42 C.F.R. §438.10(b), requires that State Medicaid agencies:

"(5) Notify enrollees and potential enrollees, and require each [MCO] to notify its enrollees and potential enrollees—

(i) That oral interpretation and written information are available in languages other than English; and

(ii) Of how to access those services." 66 Fed. Reg. 6407 (January 19, 2001).

The regulation does not specify how either the State agency or the MCO should notify enrollees and potential enrollees.

The following illustrative language would require Contractors to ensure that oral notice of the right to interpreter services is furnished to enrollees with limited English proficiency. This duty would extend to all enrollees with limited English proficiency, including those who speak a (non-English) language other than a threshold language.

(1) Language Card¹⁵ — Contractor shall provide without charge a language card that sets forth, in each language spoken in Contractor's service area (whether or not such language is a threshold language as defined in §110(j)), the information specified in paragraph (4) to each enrollee:

(A) who is identified (or self-identifies) under subsection (e) as an enrollee with limited English proficiency (as defined in §110(d));

(B) at the time of the enrollee's identification (or self-identification) under subsection (e).

(2) Oral Notice — Contractor shall provide, or ensure the provision of, oral notice (consistent with paragraphs (3) and (4)) of the right to oral interpreter services (as described in subsection (f)) without charge to an enrollee who:

(A) is identified by, or known to, Contractor as an enrollee with limited English proficiency (as defined in §110(d)); or

(B) identifies himself or herself as having limited English proficiency under subsection (e)(1).

(3) When Oral Notice Must Be Provided — Contractor shall ensure that the oral notice required under paragraph (2) is provided to an enrollee at each contact relating to the furnishing of covered services between the enrollee and:

(A) an employee of Contractor; or

(B) a provider participating in Contractor's provider network, or an employee of such provider.

(4) Content of Language Card and Oral Notice — The language card and oral notices required by paragraphs (1) and (2) shall include a statement that:

(A) each enrollee with limited English proficiency has a right to receive oral interpreter services without charge (subsection (c));

(B) Contractor has a duty to furnish oral interpreter services to an enrollee with limited English proficiency at each contact relating to the furnishing of covered services between the enrollee and an employee of Contractor, a provider participating in Contractor’s provider network, or an employee of such provider (subsection (f)(4));

(C) an enrollee with limited English proficiency may not be required to use family or friends to furnish oral interpreter services (subsection (f)(5));

(D) an enrollee with limited English proficiency has the right to file complaints or grievances if required oral interpreter services are not provided in a timely manner (subsection (g)); and

(E) an enrollee who speaks a language described in §102(b)(3) has the right to receive oral interpreter services of informing materials described in §102(d)(2).

(e) Identification and Self-Identification of Enrollees with Limited English Proficiency¹⁶

Commentary: The right to interpreter services articulated in subsection (c) extends to all enrollees with limited English proficiency. The final Medicaid managed care regulation, 42 C.F.R. §438.10(b)(1), requires that State Medicaid agencies "establish a methodology for identifying the non-English languages spoken by enrollees and potential enrollees throughout the State." 66 Fed. Reg. 6407 (January 19, 2001). In addition, the regulations specifies procedures required of State Medicaid agencies with respect to their MCO quality strategies, including procedures that "(iii) Identify the race, ethnicity, and primary language spoken of each Medicaid enrollee. States must provide this information to the [MCO] for each Medicaid enrollee at the time of enrollment." 66 Fed. Reg. 6413-6414 (January 19, 2001). The regulation does not define the terms "non-English languages" and "primary language."

The following illustrative language would impose a duty on Contractor to identify enrollees with limited English proficiency among the Contractor’s new and current enrollee populations, either by enrollee self-identification or by employee identification. This duty would apply only with respect to those enrollees for whom Contractor does not have language-identifying information from Purchaser under 42 C.F.R. §438.204(b)(1)(iii) 66 Fed. Reg. 6413 (January 19, 2001). Any enrollees so identified would have the right to interpreter services. However, the duties of the Contractor to enrollees with limited English proficiency under these purchasing specifications, including the duty to furnish interpreter services, would apply to any enrollee with limited English proficiency, whether self-identified or identified by Contractor.

The following illustrative language would place a duty on Contractor to identify enrollees with limited English proficiency and to make this information available to network providers. (Providers would not be required to identify such enrollees; they would, however, have an obligation to offer oral interpreter services to such enrollees under §105(d)). As discussed in the introduction at pp. 6-7, another approach would be for the Purchaser to assume the responsibility for identifying such enrollees and making this information available to contracting MCOs at the time of enrollment. Purchasers may wish to consider whether it is more efficient for them to carry out this identification function rather than to contract it out to multiple MCOs. In this regard, note that this information will also be needed by providers participating in Medicaid on a fee-for-service basis in order to comply with their Title VI obligations.

The CLAS standard #5 states: "Health care organizations must provide to patients/consumers in their preferred language both verbal offers and written notices informing them of their right to receive language assistance services." The commentary accompanying this standard explains the concept of "preferred language" as follows: "Health care organizations should explicitly inquire about the preferred language of each patient/consumer and record this information in all records. The preferred language of each patient/consumer is the language in which he or she feels most comfortable in a clinical or nonclinical encounter." 65 Fed. Reg. 80875 (December 22, 2000). The following illustrative language would require that a Contractor determine what language is spoken by an enrollee who is not proficient in English.

(1) Self-Identification — In the case of an enrollee with respect to whom Contractor has not received information from Purchaser under 42 C.F.R. §438.204(b)(1)(iii) identifying the primary language spoken by the enrollee, Contractor shall ensure that, at the first contact known to Contractor between an enrollee and an employee of Contractor:

(A) the employee shall ask the enrollee to identify the language that the enrollee speaks;

(B) if the enrollee self-identifies a language under subparagraph (A), the employee shall:

(i) enter the information into Contractor’s management information system under §107(b);

(ii) notify the enrollee's primary care provider participating in Contractor's provider network of the identification; and

(iii) make available to providers participating in Contractor's provider network (through Contractor's management information system or other means), information that enables a provider to determine whether an enrollee presenting for treatment is an enrollee with limited English proficiency.

(2) Contractor Identification — If an enrollee is not identified by Purchaser or self-identified as an enrollee with limited English proficiency under paragraph (1), Contractor shall ensure that, at the first contact between the enrollee and an employee of Contractor,:

(A) the employee shall attempt to determine the language each enrollee with limited English proficiency speaks;

(B) if the employee is able to make the determination under subparagraph (A), the employee shall:

(i) enter the information into Contractor’s management information system under §107(b);

(ii) notify the enrollee's primary care provider participating in Contractor's provider network of the identification; and

(iii) make available to providers participating in Contractor's provider network (through Contractor's management information system or other means), information that enables a provider to determine whether an enrollee presenting for treatment is an enrollee with limited English proficiency; and

(C) if the employee is not able to make the determination under subparagraph (A), the employee shall contact [drafter insert name of telephone interpreter service].

(f) Furnishing of Oral Interpreter Services

Commentary: OCR's Policy Guidance, www.hhs.gov/ocr/lep/guide.html, requires entities receiving federal funds to develop and implement a "language assistance program" that provides, among other things, for "a range of oral language assistance options." The Guidance states (p. 8): "In designing an effective language assistance program, a recipient/covered entity develops procedures for obtaining and providing trained and competent interpreters and other oral language assistance services, in a timely manner, by taking some or all of the following steps:

• Hiring bilingual staff who are trained and competent in the skill of interpreting;
• Hiring staff interpreters who are trained and competent in the skill of interpreting;
• Contracting with an outside interpreter service for trained and competent interpreters;
• Arranging formally for the services of voluntary community interpreters who are trained and competent in the skill of interpreting; and
• Arranging/contracting for the use of a telephone language interpreter service."

These purchasing specifications do not use the OCR concept of "language assistance program," and adoption of these specifications does not necessarily ensure compliance with the OCR Policy Guidance. However, the following illustrative language contains the basic elements identified by the OCR Guidance. Contractors would be required to furnish oral interpreter services at each encounter with an enrollee on a timely basis using one or more of the following: competent interpreters, a telephone interpreter line, bilingual providers, and bilingual staff.

(1) Duty — Contractor shall furnish, or arrange for the furnishing of, oral interpreter services without charge to each enrollee identified (or self-identified under subsection (c) as an enrollee with limited English proficiency) in the language spoken by the enrollee (whether or not such language is a threshold language as defined in §110(j)):

(A) on a timely basis as described in paragraph (2);

(B) at the points of contact described in paragraph (3); and

(C) through the use of interpreters, telephone interpreter lines, or bilingual staff meeting the requirements of paragraph (4).

(2) Timeliness of Oral Interpreter Services

(A) In General — Contractor shall furnish, or arrange for the furnishing of, oral interpreter services to an enrollee with limited English proficiency in a timely manner as specified in subparagraphs (B) and (C).

(B) Emergency Services — In the case of an encounter between an enrollee with limited English proficiency and a provider participating in Contractor’s provider network in connection with an emergency medical condition (as defined in §110(c)), Contractor shall furnish, or arrange for the furnishing of, oral interpreter services on a 24-hour per day, 7-day per week basis within [ ] minutes of:

(i) a request for such services by the enrollee; or

(ii) a determination by the treating provider that the enrollee requires such services.

(C) Non-Emergency Services — In the case of an encounter between an enrollee with limited English proficiency and a provider participating in Contractor’s provider network other than an encounter described in subparagraph (B), Contractor shall furnish, or arrange for the furnishing of, oral interpreter services to the enrollee with limited English proficiency:

(i) at the time a scheduled appointment begins; and

(ii) within [ ] minutes of the time an unscheduled appointment is requested by or on behalf of the enrollee with limited English proficiency.

(D) Member Services — In the case of a contact between an enrollee with limited English proficiency and an employee of Contractor that is not a medical care encounter described in subparagraph (B) or (C), Contractor shall furnish, or arrange for the furnishing of oral interpreter services to the enrollee with limited English proficiency at the time of the contact.

(3) Points of Contact Requiring Oral Interpreter Services — Contractor shall furnish, or arrange for the furnishing of, oral interpreter services to an enrollee with limited English proficiency, whether or not a request is made by or on behalf of the enrollee, at every point of contact between the enrollee and Contractor, a provider participating in Contractor’s provider network, or an employee of Contractor or such provider, including:

(A) each encounter (whether emergency or non-emergency) between an enrollee with limited English proficiency and a provider participating in Contractor’s provider network;

(B) receipt by the enrollee of Contractor’s standard treatment, pre-and post-operative and aftercare instructions, and Contractor's patient consent forms;

(C) any member services, including scheduling of appointments¹⁷ and arranging of transportation;

(D) understanding and invoking the enrollee’s rights under the complaint and grievance procedures described in [drafter insert reference to applicable provisions of purchasing document];

(E) in the case of an enrollee described §102(b)(3), for the purpose of translating informing materials described in §102(d)(2); and

(F) [drafter insert other circumstances under which Contractor must furnish interpreter services].¹⁸

Commentary: The CLAS standard #6 (65 Fed. Reg. at 80875) relating to the quality of oral interpreter services is: "Health care organizations must assure the competence of language assistance provided to limited English proficient patients/consumers by interpreters and bilingual staff. Family and friends should not be used to provide interpretation services (except on request by the patient/consumer)." The following illustrative language would enable Contractors to deliver oral interpreter services through one of more of the following: staff or contract interpreters; telephone interpreter lines; bilingual staff; and under certain circumstances, adult friends or family members of the enrollee. The language does not specify any particular approach or mix of approaches; it does, however, set forth some minimum requirements relating to each approach.

Note that the following illustrative language does not contemplate the use of bilingual providers for the delivery of oral interpreter services. Concern was expressed that if bilingual providers were used, they would have to be proficient in the language spoken by the enrollee and that testing the proficiency of network physicians and other practitioners could complicate provider recruitment and retention efforts. However, purchasers interested in allowing MCOs to rely on bilingual providers for the delivery of oral interpreter services could use language paralleling that applicable to bilingual staff in paragraphs (4)(C) and (5)(C).

(4) Delivery of Oral Interpreter Services — Contractor may carry out the duty described in paragraph (1) through the use of:

(A) staff, contract, or volunteer interpreters meeting the requirements of paragraph (5)(A) (relating to competence);

(B) telephone interpreter lines meeting the requirements of paragraph (5)(B);

(C) bilingual staff meeting the requirements of paragraph (5)(C) (relating to proficiency); and

(D) under the circumstances specified in paragraph (6), adult friends or family members of the enrollee.

(5) Requirements Relating to Delivery of Oral Interpreter Services. ¹⁹

Commentary: The following illustrative language would place a duty on Contractor to ensure the competence of interpreters providing oral interpreter services to MCO enrollees. As discussed in the introduction at pp. 6-7, another approach would be for the Purchaser to assume the responsibility for this function. This could entail conducting proficiency examinations, offering training, or both. Purchasers may wish to consider whether it is more efficient for them to carry out one or both of these functions rather than to contract them out to multiple MCOs. In this regard, note that oral interpreter services will be required by providers participating in Medicaid on a fee-for-service basis in order to comply with their Title VI obligations.

(A) Competence of Interpreters

(i) Competence of Interpreters Used in Non-Clinical Contacts — If Contractor furnishes oral interpreter services through the use of a staff , contract, or volunteer interpreter in any contact between an enrollee and Contractor other than a clinical encounter described in clause (ii), Contractor shall ensure that the interpreter:

(I) is proficient (as defined in §110(e)) in both English and in the language spoken by the enrollee (whether or not this language is a threshold language as defined in §110(j));

(II) has demonstrated knowledge of the requirements relating to patient confidentiality; and

(III) has demonstrated the ability to communicate accurately, in both English and in the language spoken by the enrollee, terms and concepts related to the delivery of items and services covered under [drafter insert name of purchasing document].

(ii) Competence of Interpreters Used in Clinical Encounters — If Contractor furnishes (or arranges for the furnishing of) oral interpreter services through the use of a staff, contract, or volunteer interpreter in any encounter between an enrollee and a provider participating in Contractor's provider network, Contractor shall ensure that the interpreter:

(I) meets the requirements described in clause (i); and

(II) has completed [ ]²⁰ hours of training in the techniques and ethics of medical interpreting and can pass a written and verbal assessment of the knowledge acquired by the individual from the training.²¹

Commentary: The following illustrative language would place a duty on Contractor to ensure that a telephone interpreter line is available for use by network providers during clinical encounters with enrollees with limited English proficiency. As discussed in the introduction at pp. 6-7, another approach would be for the Purchaser to assume the responsibility for making available to all contracting MCOs (and network providers) a telephone interpreter line. Purchasers may wish to consider whether it is more efficient for them to carry out this function rather than to contract it out to multiple MCOs with overlapping service areas. In this regard, Purchasers should note that access to a telephone interpreter line may also be needed by providers participating in Medicaid on a fee-for-service basis in order to comply with their Title VI obligations.

(B) Telephone Interpreter Line²² — If Contractor furnishes oral interpreter services through the use of a telephone interpreter line, Contractor shall ensure that the line is:

(i) approved in advance by Purchaser; and

(ii) used only at an encounter during which no competent interpreter under subparagraph (A), bilingual provider under subparagraph (C), or bilingual staff member under subparagraph (D) is available.

Commentary: The following illustrative language sets forth requirements for Contractors with respect to delivering oral interpreter services. The language does not include a requirement with respect to inclusion of bilingual providers in the Contractor's provider network. There is, however, language relating to bilingual staff. In this connection, note that OCR's Policy Guidance (August 30, 2000), www.hhs.gov/ocr/lep/guide.html, states: "Hiring bilingual staff for patient and client contact positions facilitates participation by LEP persons. However, where there are a variety of LEP language groups in a recipient's service area, this option may be insufficient to meet the needs of all LEP applicants and clients. Where this option is insufficient to meet the needs, the recipient/covered entity must provide additional and timely language assistance. Bilingual staff must be trained and must demonstrate competence as interpreters." (p. 8)

An example of an MCO that actively recruits and attempts to deploy bilingual health professionals at facilities where demand is greatest is Kaiser Permanente of Southern California. The health plan also offers a pay differential for bilingual staff who want to serve as interpreters and pass a proficiency exam. Berlitz conducts the test by phone. The pay differential is $65 per month in every job category. Personal Communication to J. Fortier from M. Jean Gilbert, Director, Department of Cultural Competence, Kaiser Permanente California (January, 2001).

(C) Bilingual Staff — If Contractor furnishes oral interpreter services through the use of bilingual staff, Contractor shall ensure that the staff member who is present (either in person or by telephone):

(i) is proficient (as defined in §110(e)) in the language spoken by the enrollee with limited English proficiency; and

(ii) meets the requirements of subparagraph (A)(i) relating the competence of interpreters in non-clinical encounters.

(6) Limitation on Use of Friends or Family Members as Interpreters

(A) Prohibition Against Requirement for Use²³ — Contractor shall not require an enrollee with limited English proficiency to provide an interpreter or to use a friend or member of the enrollee’s family to furnish oral interpreter services during the course of a contact described in subparagraph (C).

(B) Voluntary Use of Adult Friends or Family Members

(i) Contractor shall, upon request, permit an enrollee with limited English proficiency to use a friend or family member as an interpreter during a contact described in subparagraph (C) only if the friend or family member to be used as an interpreter is 18 years old or older.²⁴

(ii) In a case described in clause (i), Contractor shall offer to make an interpreter available (in person or by telephone) for the duration of the encounter at no charge to the enrollee but may not require the enrollee to accept the offer.

(iii) If an enrollee refuses an offer of an interpreter during a clinical encounter described in subsection (c)(2), Contractor shall ensure that the offer and the refusal is documented in the enrollee's medical record.

(C) Contact — For purposes of this paragraph, a contact is any contact (whether in person or by telephone) between an enrollee with limited English proficiency and Contractor, an employee of Contractor, a provider participating in Contractor's provider network, or an employee of such provider, other than a contact relating solely to:

(i) the scheduling of an appointment;

(ii) the reporting of a change of address;

(iii) the reporting of a lost member identification card; or

(iv) a request for an enrollee handbook, provider directory, or orientation materials.

(g) Complaint and Grievance Procedures — Contractor agrees that an enrollee with limited English proficiency (as defined in §110(d)) shall have the right to invoke the complaint and grievance procedure under [drafter insert reference to complaint and grievance provisions in purchasing document] with respect to:

(1) the failure to offer a notice of right to oral interpreter services as required under subsection (d);

(2) the failure to identify the enrollee as an individual with limited English proficiency as required under subsection (e); and

(3) the failure to furnish oral interpreter services meeting the standards required under subsection (f) (relating to timeliness, applicable points of contact, delivery of services, competence of interpreters or staff, and limitations on use of family or friends).

(h) Data Collection and Reporting — Contractor shall comply with the requirements of §107(a)(2) (relating to collection and reporting of data regarding oral interpreter services).

(i) Employee — For purposes of this section, an employee of Contractor shall be deemed to include any subcontractor or agent.

Compliance Measure: Contractor shall make available to Purchaser on request:

(1) copies of Contractor’s operating manual and any memoranda, guidances, and other materials relating to Contractor’s procedures for the identification and tracking of enrollees with limited English proficiency;

(2) the names of the individuals or organizations through which Contractor furnishes interpreter services to enrollees with limited English proficiency;

(3) the language or languages other than English in which each individual furnishing oral interpreter services is proficient;

(4) the methods or training protocols used by Contractor to ensure the competence of interpreters;

(5) a language card distributed by Contractor to enrollees with limited English proficiency;

(6) copies of any complaints or grievances received by Contractor relating to oral interpreter services; and

(7) the telephone numbers of the interpreter lines used by Contractor or providers participating in Contractor's provider network.

§104. Coverage Determination Standards and Procedures

Commentary: The following suggested language is intended to supplement provisions of general applicability in a purchasing document relating to coverage determination standards and procedures. For an example of language of general applicability, see CHSRP, Medicaid Pediatric Purchasing Specifications (September 1999), Part 1A²⁵ , www.gwhealthpolicy.org.

The CLAS standard #13 (65 Fed. Reg. at 80878) is: “Health care organizations should ensure that conflict and grievance resolution processes are culturally and linguistically sensitive and capable of identifying, preventing, and resolving cross-cultural conflicts or complaints by patients/consumers."

As discussed in the commentary to §102(b) above, the OCR Policy Guidance treats written notices relating to the reduction, denial, or termination of services as "vital documents" that are subject to translation into the language of each "eligible LEP language group that constitutes 5 percent or 1,000, whichever is less," of the MCO's enrollees. The following illustrative language conforms to this policy. In addition, the following illustrative language would require the MCO to make available oral interpreter services to assist enrollees in language groups smaller than those entitled to translation of the notice under the OCR Policy Guidance in understanding written notices relating to the reduction, denial, or termination of Medicaid-covered services.

(a) Duty of Contractor to Certain Enrollees with Limited English Proficiency — In the case of an enrollee who speaks a language described in §102(b)(2)(A)(i) (relating to a language group constituting the lesser of 5 percent or 1,000 of Contractor's enrollees) who receives a written notice of the denial, reduction, or delay of a covered item or service under [drafter insert reference to Contractor's coverage determination and prior authorization provisions in purchasing document], Contractor shall, consistent with §102(b)(2), ensure that the notice is translated in to the language spoken by the enrollee.

(b) Duty of Contractor to Other Enrollees with Limited English Proficiency — In the case of an enrollee who speaks a language described in §102(b)(3)(B) (relating to a language group smaller than the lesser of 5 percent or 1,000 of Contractor's enrollees) who receives a written notice of the denial, reduction, or delay of a covered item or service under [drafter insert reference to Contractor's coverage determination and prior authorization provisions in purchasing document], Contractor shall, consistent with §102(b)(3), ensure that oral interpreter services are made available to the enrollee to assist the enrollee in understanding the notice.

Compliance Measure: Contractor shall make available to Purchaser on request:

(1) Contractor’s operating manual, protocols, or other materials used by Contractor relating to coverage determinations;

(2) Contractor’s provider manual provisions relating to coverage determination standards and procedures; and

(3) Contractor’s enrollee handbook provisions relating to coverage determinations.

§105. Provider Network

Commentary: The following suggested language is intended to supplement provisions of general applicability in a purchasing document relating to provider networks. The CLAS standard #2 (65 Fed. Reg. at 80874) is: “Health care organizations should implement strategies to recruit, retain, and promote at all levels of the organization a diverse staff and leadership that are representative of the demographic characteristics of the service area." For language in state Medicaid MCO contracts relating to multilingual providers in networks, see Table 3.6, Negotiating the New Health System 4th Edition (2001), www.gwhealthpolicy.org.

These specifications assume a purchasing arrangement under which a state or private purchaser contracts on a risk basis directly with an MCO, which in turn contracts with a network of providers, including individual practitioners, physician groups, health clinics, and hospitals. Some of the duties applicable to the MCO under §101(b) are also applicable, through the MCO, to all individual practitioners participating in the MCO's network. These duties include compliance with the oral interpreter services requirements under §103 and the various requirements of this provider network section. Note that these duties are made applicable, via the written provider agreement requirement in subsection (e), to a practitioner even in cases where the provider is clearly "culturally competent" with respect to a specific racial or ethnic minority group. For example, the practitioners and staff in a community clinic specializing in the provision of services to Hispanic enrollees are still subject to the requirements of §103(f)(5) that (1) bilingual providers and bilingual staff be proficient in Spanish and English and (2) interpreter services be made available to enrollees with limited English proficiency who seek services at the clinic and do not speak either Spanish or English through staff, contractor, or volunteer interpreters.

(a) Duty

(1) In General — Contractor shall maintain a network of providers that have entered into enforceable written agreements under subsection (d) with Contractor through which Contractor furnishes items and services covered under [drafter insert reference to coverage provisions in purchasing document] to enrollees that complies with the requirements of:

(A) subsection (b) (relating to bilingual primary care providers);

(B) subsection (c) (relating to cultural competence training); and

(C) subsection (d) (relating to written agreements with providers).

(2) Delegation²⁶ — Contractor may delegate duties under [drafter insert name of purchasing document] to providers (or other subcontractors) only if the following requirements are met:

(A) Written Agreement — The delegation of any duty from Contractor to providers (or other subcontractors) is effective only to the extent that the delegation is set forth in a written agreement under subsection (d); and

(B) Contractor’s Ultimate Responsibility — Notwithstanding any delegation of a duty of Contractor under subparagraph (A), Contractor shall maintain ultimate responsibility for adhering to, and otherwise fully complying with, the requirements, terms, and conditions of [drafter insert name of purchasing document].

(b) Bilingual Primary Care Providers

Commentary: The illustrative language in subsections (b) and (c) addresses cultural competence issues relating to enrollee access to individual practitioners (e.g., physicians, nurse practitioners, etc.) who deliver primary care services. Because the definition of primary care provider in §110(g) is specific to practitioners, these subsections would not apply to community clinics, group practices, or similar entities that deliver primary care services. (They would, however, apply to the practitioners working in such clinics, practices, or other entities), These subsections would also not apply to specialists or other non-primary care practitioners or facilities, such as acute care hospitals.

The illustrative language in this section does not speak to the issue of selection of a primary care provider by an enrollee. As discussed in the introduction, these specifications are intended to be integrated, in whole or in part, into broader contracting documents which include provisions relating provider selection. For example, see Part 4 of CHSRP’s Medicaid Pediatric Purchasing Specifications, (September 1999), www.gwhealthpolicy.org

(1) In General²⁷ — Contractor shall take steps to recruit into its provider network a sufficient number of primary care providers (as defined in §110(g)) who are proficient (as defined in §110(e)) in a threshold language (as defined in §110(j)).

Commentary: The following illustrative language would define a "sufficient number" in terms of access by an unspecified percentage of enrollees with limited English proficiency to a choice of a bilingual primary care provider who is accessible to the enrollees. This lack of specificity is intended to enable interested Purchasers and MCOs to negotiate the percentage that would apply in a given contract year. Under this approach, the requirement could be phased-in over several contract years to reach most or all enrollees with limited English proficiency.

(2) Sufficient Number — For purposes of paragraph (1), a sufficient number of primary care providers (as defined in §110(g)) is the number that enables Contractor to offer, throughout the contract year, [ ] percent of enrollees with limited English proficiency (as defined in §110(d)) who speak the threshold language a choice of at least [ ] primary care providers who are:

(A) proficient (as defined in §110(e)) in the language; and

(B) accessible under [drafter insert reference to access requirements in purchasing document].²⁸

(c) Cultural Competence Training of Providers

Commentary: The following illustrative language assumes that Contractor will ensure that each practitioner participating in Contractor’s provider network will receive cultural competence training that meets minimum standards. Providers would be required to complete a basic cultural competence training, and periodically thereafter participate in continuing cultural competence training. The language does not, however, assume that the practitioners must receive the training from the Contractor or from an entity with which the Contractor subcontracts for this purpose. The Contractor would be required to offer, or arrange for, the training at Contractor’s expense if requested to do so by a network practitioner. If a practitioner prefers to obtain cultural competence training from a source other than Contractor or Contractor’s designee, the practitioner would bear the cost.

Note that this training requirement would apply to all participating practitioners, including those who are bilingual, who are members of racial or ethnic minority groups, or who furnish services through an organization that specializes in the delivery of health care to a particular group or groups.

The final Medicaid managed care regulations, 42 C.F.R. §438.102(b)(2)(i), require that MCOs ensure "that health care professionals furnish information about treatment options … in a culturally competent manner…." 66 Fed. Reg. 6412 (January 19, 2001). The following illustrative language would place a duty on Contractor to ensure that providers receive training in the culturally competent delivery of health care. As discussed in the introduction at pp. 4-5, another approach would be for the Purchaser to assume the responsibility for such training. Purchasers may wish to consider whether it is more efficient for them to carry out this function rather than to contract it out to multiple MCOs. In this regard, Purchasers should note that training in cultural competence may also be needed by providers participating in Medicaid on a fee-for-service basis in order to comply with their Title VI obligations.

(1) In General — Contractor shall:

(A) include in each written agreement under subsection (d) with a provider participating in Contractor’s provider network a requirement that the provider and the provider’s clinical staff participate in basic or continuing cultural competence training, as appropriate, that meets the standards described in paragraph (2); and

(B) upon request of a provider participating in Contractor’s provider network for the purpose of meeting the requirement under subparagraph (A), offer, or arrange for the provision of, the basic or continuing cultural competence training described in paragraph (2) for the provider or the provider’s clinical staff at Contractor’s expense.

Commentary: The following illustrative language sets forth a number of topics for cultural competence training of providers. These topics are representative of several well-regarded training curricula, although there is currently no single, nationally accepted standard curriculum. ²⁹

(2) Cultural Competence Training for Providers — Contractor shall ensure that, at a minimum, basic and continuing cultural competence training for providers participating in Contractor’s provider network:

(A) requires:

(i) in the case of basic cultural competence training, a minimum of [ ] hours of attendance; and

(ii) in the case of continuing cultural competence training, a minimum of [ ] hours of attendance; and

(B) addresses the following topics with respect to [drafter insert names of population groups in Contractor’s service area with respect to which such training is appropriate]:

(i) effects of cultural differences among patients, providers, and clinical staff upon health outcomes, patient satisfaction, and clinical management of preventable and chronic diseases and conditions;

(ii) differences in the clinical management of preventable and chronic diseases and conditions indicated by differences in the race or ethnicity of an enrollee;

(iii) effects of the culture of American medicine and medical training upon providers, clinical staff, and patients;

(iv) effects of differences in the culture of providers and patients on clinical encounters and patient safety;

(v) elements of effective communication among providers, clinical staff, and patients:

(I) of different cultures; and

(II) in languages other than English;

(vi) techniques for eliciting cultural information during the taking of an enrollee’s medical history and during clinical encounters;

(vii) strategies and techniques for the identification, prevention, and resolution of racial, ethnic, or cultural conflicts between providers, clinical staff, and patients;

(viii) Contractor's written policy on language access; and

(ix) the applicable requirements of:³⁰

(I) Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, 45 C.F.R. §80.1 et seq.;

(II) §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 et seq., 45 C.F.R. Part 84;

(III) the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., 28 C.F.R. Parts 35 and 36; and

(IV) [drafter insert references to state or local laws prohibiting discrimination].³¹

(3) Construction — The provisions of this subsection shall not be construed to require Contractor to furnish cultural competence training in a setting or in a manner that differs from other employee training provided by Contractor.

(d) Written Agreements with Providers

Commentary: The following elements of the written agreement relate only to cultural competence and language access issues. For other generally applicable provisions, such as those relating to payment in a timely manner, see §501(b) of CHSRP, Medicaid Pediatric Purchasing Specifications (September 1999), www.gwhealthpolicy.org (referred to as "MEDICAIDSPECS"). For purposes of these purchasing specifications, the term “providers” means individual practitioners, not clinics, hospitals, or similar entities. Note that these written agreements could serve in part as vehicles for the delegation of duties from Contractor to providers consistent with the requirements of subsection (a)(2) above.

(1) In General — Contractor shall enter into and maintain an enforceable written agreement with each provider (as defined in §110(f)) participating in Contractor’s provider network that meets the requirements of paragraph (2).

(2) Provisions Relating to Cultural Competence — Contractor shall include in each written agreement with a provider (as defined in §501(b) of MEDICAIDSPECS) participating in Contractor’s provider network provisions that set forth the provider’s duties:

(A) to furnish items and services covered under [drafter insert name of purchasing document] to enrollees in a culturally competent manner (as defined in §101(b));

(B) in the case of a provider who has not participated in basic cultural competence training described in subsection (c)(2)(B)(i), to participate in such basic training;

(C) in the case of a provider who has participated in basic cultural competence training described in subsection (c)(2)(B)(i), to participate at least [ ] in the continuing cultural competence training described in subsection (c)(2)(B)(ii);

(D) to ensure that, consistent with the oral interpreter services requirement of §103(f)(1), there is present (in person or by telephone) at each encounter with an enrollee with limited English proficiency (as defined in §110(d)) an interpreter who:

(i) meets the requirements of §103(f)(5)(A) (relating to competence);

(ii) is proficient (as defined in §110(e)) in the language spoken by the enrollee; and

(iii) is either employed by Contractor or is under contract to Contractor (at Contractor's expense);

(E) to comply with the requirements of §102(c)(1) relating to posting signage furnished by Purchaser under §102(c)(2) at the point of entry to the location at which the provider practices; and

(F) to comply with Contractor’s policies and procedures relating to confidentiality of patient medical information under §108(c)(7).

Compliance Measure: Contractor shall make available to Purchaser on request:

(1) the name and practice site of each provider participating in Contractor’s provider network who is proficient in a language other than English (or who has at his or her practice site a health care professional who is proficient in a language other than English) and the language(s) in which such provider (or professional) is proficient;

(2) the name and work telephone number of the individuals through whom Contractor, or providers participating in Contractor’s provider network, makes language interpreter services available;

(3) written agreements with participating providers; and

(4) curricula