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Employee Benefits Legal Blog Employee Benefits Related to Labor & Employment Matters

PPACA and “Linguistically Appropriate Services”

Posted in Plan Administration, Welfare Plans

Under ERISA, there are come requirements for plan administrators to provide documents or notices in languages other than English.  If a plan has participants who are literate only in a particular foreign language, the plan administrator may be required to provide the SPD or required notices written in that language, along with the SPD, stating that assistance in understanding the SPD or notice is available.  Generally for plans with fewer than 100 participants as of the beginning of the plan year, the requirement applies if 25% or more of participants are literate only in a particular foreign language.  For plans with 100 or more participants as of the beginning of the plan year, the requirement applies if the lesser of 500 participants or 10% of the total number of participants are literate only in a particular language. 

Under PPACA, which incorporated Section 2719 of the Public Health Service Act, group health plans and health insurance issuers offering health insurance coverage have to provide relevant notices in a "culturally and linguistically appropriate manner."  The idea is that plans will make certain accommodations for notices sent to an address in a county where 10% of people who reside in that county are are literate only in the same non-English language.  CMS recently published its "Culturally and Linguistically Appropriate Services County Data" which lays out which counties are affected. 

What this means is that the notices regarding enhanced internal and external appeals and also the summary of benefits coverage have to be distributed with a statement, prominently displayed, in any applicable non-English language, clearly indicating how to obtain assistance in understanding the notices.  If requested, the notices also have to be provided in the applicable non-English language.  In short, plan sponsors have to be prepared to include non-English directions on their notice and also to have non-English notices available,

A quick review of the county list provides some real-world examples.  Notices mailed to addresses in Bronx County, New York, have to include statements in Spanish.  This is also the case for Union County, New Jersey and Los Angeles County, California.  San Francisco County has to have the notice in Chinese, but not Spanish.  So first, review to find our where you are sending notices BY COUNTY in each state where you have covered participants.  Second, check to see if the county you are sending the notices to requires special non-English notice.  Third, prepare appropriate notices in that language and make arrangement for translation services to make sure participants can obtain assistance in understanding the notices.

Obviously PPACA’s status with the Supreme Court remains up in the air.  But it might be worthwhile for plan sponsors to check this list out and see what they might have to prepare for if it is upheld.