Group health plans and health insurers are required to provide certain notices in a “culturally and linguistically appropriate” manner (i.e., in a language other than English). Before PPACA a variation of this requirement applied for ERISA summary plan descriptions (SPDs) if at least 10% of a plan’s participants were literate only in the same non-English language. Under PPACA, the requirement has been revised. It now applies to additional notices, and, rather than the “10% of plan participants” threshold, the test now is whether at least 10% of a county’s population is literate only in the same non-English language. The Department of Health and Human Services (HHS) publishes a list annually of the applicable counties.
On August 2, 2013, the HHS Center for Consumer Information and Insurance Oversight (CCIIO) released the 2013 County Data for Use by Health Plans and Insurance Issuers in Providing Culturally and Linguistically Appropriate Services.
The list identifies counties in which 10% or more of the population is literate only in the same non-English language. This year, counties are identified in Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Texas, Virginia, Washington, and Puerto Rico (Minnesota and Utah are no longer on list).
The four relevant non-English languages included are: Spanish, Chinese, Tagalog and Navajo.
The annual HHS list of counties helps group health plans and health insurance issuers determine the counties in which they are required to provide notices in a culturally and linguistically appropriate manner. The applicable Health Care Reform information that must be provided is:
1) A Consumer’s Right to External Review
Non-grandfathered group health plans with participants in the listed counties must provide notices under the plan’s internal claims review process in a “culturally and linguistically appropriate” manner.
2) The Summary of Benefits and Coverage (SBC)
Both grandfathered and non-grandfathered group health plans must provide the SBC in a “culturally and linguistically appropriate” manner. The first time the SBC is/was required is by the first day of the first open enrollment period that begins on or after September 23, 2012. Most calendar year plans provided the SBCs with the open enrollment materials for the 2013 plan year.
3) Oral language services (e.g., a customer hotline) in the non-English language.
4) A plan notice that clearly indicates how participants can access the plan’s language services.
What does the “culturally and linguistically appropriate” requirement mean?
The affected plan must provide oral language services in the non-English language, and the notices that are sent to addresses within the listed counties must include a statement in the applicable non-English language clearly indicating how to access the plan’s language services. The U.S. Department of Labor (DOL) website provides a sample statement for each of the four languages.
If requested, the plan must also provide the notices in the non-English language.
Who is Responsible to Determine in what Counties Non-English Services must be Provided?
• If your plans are insured, your carriers probably will notify you of the affected counties in which they will be including statements in the applicable non-English languages, and also providing oral services and copies of required notices as well, if requested.
• If your plans are self-insured, confirm with your third-party administrator(s) that they have the 2013 list of counties that meet the 10% language thresholds.
• If you as plan sponsor provide any of the affected notices or respond to requests for them, be sure you comply with these requirements as well.
The link to the guidance and list can be found here on CMS.gov.