Most everyone wants to be culturally appropriate. But just what does that mean? The answer to that question became a little clearer for non-grandfathered group health plans in the context of notices to be provided for internal health claims and appeals. Plan sponsors will need to pay attention, as compliance with new guidance is required for plan years beginning on or after January 1, 2012.
Interim final rule amendments recently issued by the Departments of Health and Human Services, Labor and Treasury modify the standards for determining when group health plans and health insurance issuers are considered to have provided notices relating to internal claims and appeals in a culturally and linguistically appropriate manner. (See our recent post that discusses the interim final rule amendments.)
The interim final rules provide that a plan and issuer must provide notice to individuals, in a culturally and linguistically appropriate manner that complies with certain new requirements as well as current requirements of the Department of Labor concerning notices of benefit determinations and notices of benefit determination on review.
The following table highlights key features of the “culturally and linguistically appropriate” standards as they appeared in the July 2010 Interim Final Rules and as they have been modified in June 2011 amendments to those Rules.
Many have welcomed the shift in focus from the non-English language composition of individual plan populations to the non-English language composition of counties in which claimants reside, noting that the former presented various compliance burdens. Under the new approach, the focus is upon whether the counties in which participants reside are ones identified in Census Bureau data as ones (the “10 percent counties”) in which 10 percent or more of the population is literate only in the same non-English language. The preamble to the interim final rule amendments contains a table with current Census Bureau data. This information will be updated annually and made available at www.dol.gov/ebsa/healthreform and http://cciio.cms.gov/. Currently, there are 255 counties in the United States and Puerto Rico that meet this 10 percent threshold. Sixty percent of these counties are located in Texas and Puerto Rico, and an additional 10 percent are located in California.
Whether this shift in focus will create administrative benefits or burdens for a particular non-grandfathered plan will depend in part upon the demographics of the plan and the residence of the plan participants. For example, a plan with a sizable non-English language speaking population that met the threshold under the July 2010 interim final rule will not have to provide notices in a culturally and linguistically appropriate manner if participants do not reside in one of the counties listed in the Census Bureau data. On the other hand, plans in which less than one percent of the participant population is literate only in a non-English language (and that would not have had to comply with the notice requirements under the July 2010 interim final rule) will need to comply with the modified notice requirements under the amendments if their participants reside in one of the affected counties.
The amendments do impose an additional burden upon small self-insured group health plans by mandating the provision of oral language services. And the number of plans affected by these new rules could increase significantly if the agencies decide in the future to reduce the 10 percent threshold.
For now, sponsors of non-grandfathered group health plans and health insurance issuers must immediately determine whether participants reside in one or more of the “10 percent counties.” If so, for plan years beginning on or after January 1, 2012, sponsors must revise relevant notices to include a statement about the availability of oral language services and must prepare to provide such oral language services as well as non-English notices, if requested. Note the potential for having to provide such services in four languages: Spanish, Chinese, Tagalog and Navajo. Sponsors should allow sufficient lead time and training resources to ensure that those providing language services are familiar with sponsors’ benefit plans and approaches to handling participant inquiries so that the information provided to participants is not misleading. Regardless of whether a sponsor currently has participants who reside in any of the “10 percent” counties, the Census Bureau list of “ten percent counties” will need to be monitored on an annual basis and participant populations will need to be continually monitored.