We previously discussed when group health plans may have to provide participant communications in non-English languages. The latest guidance on internal claims and appeals and external review has refined the “culturally and linguistically appropriate” standard and added a new oral assistance requirement. In addition, last month’s proposed regulations on the Summary of Benefits and Coverage (“SBC”) would adopt the same standards for the SBC. This post will discuss the revised standard and the three obligations that are triggered when the standard is met.
Instead of requiring a plan-specific analysis of participant literacy, the revised standard looks to U.S. Census Bureau literacy data for the county in which a participant resides. If 10% of the population in a participant’s county is literate only in the same non-English language, then three requirements explained below are triggered.
The possible non-English languages that can apply are Spanish, Navajo, Tagalog, and Chinese. There are currently 255 counties that meet the 10% threshold for one of the languages, broken out as follows:
- Spanish: 249 counties (including 78 Puerto Rico counties)
- Navajo: 3 counties (in Arizona, New Mexico, and Utah)
- Tagalog: 2 counties (in Alaska)
- Chinese: 1 county (San Francisco County)
Requirements If Standard Is Met For Any County:
- One-Sentence Statement: Plan sponsors must insert a one-sentence statement translated into in the relevant non-English language on all participant claims and appeals notices and all SBCs sent to addresses in that county. The model sentence proposed in the regulations is: “To obtain assistance in [foreign language], call [phone number].” The revised Model Notice of Adverse Benefit Determination includes the model sentence translated into the four languages. This sentence could also be inserted on the SBCs.
- Oral Assistance: As indicated by the one-sentence statement, plan sponsors must provide oral language services in that non-English language, which would most likely be through a telephone assistance hotline. While we do not have much guidance from the agencies on the oral services requirement at this point, we do know that the customer-service representatives on that phone line must be able to answer questions and provide assistance with filing claims and appeals, including external review. Presumably, the representatives would also be required to provide the same type of assistance with the SBC.
- Written Translation Upon Request: If a participant requests a claim and appeal notice or SBC in the non-English language, the plan would be required to provide a translated document. Plans are not otherwise required to provide any additional translated documents.
If plan sponsors find that they have participants in multiple counties throughout the same state that all meet the threshold (for example, as with Spanish in California or Texas), they could put the one-sentence statement on all claims and appeal notices and SBCs in that state, instead of just for the particular affected counties. This may be easier than trying to distinguish the various counties where plans will meet the threshold and having separate requirements throughout the state. For anyone who gets the notice, though, the plan will have an obligation to provide oral services and translated documents if requested.
Finally, the agencies adopted the 10% county threshold from the Medicare Advantage program. Based on recent changes to the Medicare thresholds, some commentators believe the standard under health care reform may eventually be lowered from 10% to 5%. While that could substantially increase the number of qualifying counties and participants, for now the 5% threshold remains the applicable threshold.