Many of you are now aware that the Summary of Benefits and Coverage (SBC) required to be distributed under the Affordable Care Act must be provided in a “culturally and linguistically appropriate manner,” and that this standard encompasses offers of assistance in foreign languages as well as other language assistance duties. Below is a brief guide on navigating these duties, which will be considerably lightened for employers with fully insured group health plans, as opposed to self-funded plans. The foreign language assistance duties for Summary Plan Descriptions (SPDs) are also outlined. Distribution deadlines for SBCs are summarized in this prior post.
The “culturally and linguistically appropriate” standard triggers foreign language assistance duties when SBCs are distributed to employees residing in a U.S. County in which, based on U.S. Census data, 10 percent or more of the population is literate only in the same non-English language.
- A list of such counties is published annually by the Center for Consumer Information and Insurance Oversight (CCIIO)/Centers for Medicare and Medicaid Services (CMS) here.
Of relevance to Southern California employers, the list shows that in Santa Barbara, Ventura, Los Angeles, Orange and San Diego Counties, at least 10% of the population is literate only in Spanish. Thus, for SBCs distributed to participants in these counties, the employer (for a self-funded plan) or insurance carrier (for an insured plan) must do all of the following:
- Provide oral language services (such as a telephone customer assistance hotline) that include answering questions in Spanish and providing assistance with filing claims and appeals (including external review) in Spanish.
- Upon request, provide an SBC that has been translated to Spanish.
- Include, in the English-language version of the SBC, a prominently displayed statement in Spanish that clearly tells employees how to to access the language services provided by the employer or carrier.
On this last requirement, the template SBC published in May 2012 by HHS, DOL and IRS (the “agencies”) contains offers of assistance translated into Spanish, Tagalog, Chinese and Navajo, as shown below:
Language Access Services:
[Spanish (Español): Para obtener asistencia en Español, llame al [insert telephone number]. ]
[Tagalog (Tagalog): Kung kailangan ninyo ang tulong sa Tagalog tumawag sa [insert telephone number]. ]
[Chinese (中文): 如果需要中文的帮助，请拨打这个号码 [insert telephone number].]
[Navajo (Dine): Dinek’ehgo shika at’ohwol ninisingo, kwiijigo holne’ [insert telephone number].]
A link to the English-language and translated SBC templates is found here; scroll down to the section on Summaries of Benefits and Coverage.
For employers with insured plans, the carriers will fulfill most if not all foreign language assistance responsibilities. Anthem Blue Cross has stated that for its group policies it will offer foreign language assistance even outside counties with the threshold non-English reading populations. Self-funded employers will need to get foreign language assistance services from their third party document providers or from carriers with whom they have formed an “ASO” (administrative services only) relationship.
Note that SBCs must notify recipients that, by visiting a website or calling a toll-free phone number, they may obtain a copy of a “Uniform Glossary” that explains certain insurance and medical terms used in the SBC. Foreign language assitance for this document is also required, but the agencies have simplified compliance by providing template Uniform Glossaries in English, Spanish, Tagalog, Chinese, and Navajo here (scroll down for section on Summaries of Benefits and Coverage).
A review of foreign language assistance duties for SBCs is a good juncture at which to revisit such duties as they apply to SPDs. SPDs are always provided to employers by retirement plan providers but group health insurance carriers generally provide only the “Explanation of Coverage” or “Explanation of Benefits” which are drafted to comply with state insurance laws, and which do not always contain all language required to be set forth in an SPD. (A “wrap” document may be used to “fill the gap,” in which case the rules summarized below should be applied to the SPD summarizing the wrap document.)
Specifically, an SPD must contain a notice in a foreign language, prominently featured, informing participants of where they can obtain additional assistance in that language, under the following circumstances:
- For plans that cover fewer than 100 participants at the beginning of the plan year, when 25% or more are literate only in the same non-English language; or
- For plans that cover 100 or more participants at the beginning of the plan year, when the lesser of (a) 500 or more participants, or (b) 10% or more of all participants are literate only in the same non-English language.
Example: Cody’s Tool & Dye maintains a pension plan that covers 1,000 participants. As of January 1, 2012, the first day of the plan year, 500 of Cody’s covered employees are literate only in Spanish, 101 are literate only in Vietnamese, and the remaining 399 employees are literate in English. Cody will need to distribute to each employee an SPD that contains assistance notices in Spanish and in Vietnamese, offering further assistance in those languages to participants and beneficiaries who need it.
Department of Labor Regulations suggest the following text for the offer of assistance in a foreign language for SPDs:
“This booklet contains a summary in English of your plan rights and benefits under Employer [insert name of employer] Pension Plan. If you have difficulty understanding any part of this booklet, contact [insert name of plan administrator], the plan administrator, at his [or her] office at [insert office address of plan administrator]. Office hours are from [insert office hours] Monday through Friday. You may also call the plan administrator’s office at [insert plan administrator’s office telephone number] for assistance.”
(It would be also be appropriate to add the plan administrator’s email address to this offer of assistance.) If requested, the employer must arrange for verbal or written translation of the SPD as is necessary to respond to the questions of a participant who is literate only in a foreign language.
SPDs must be distributed to newly eligible participants within 90 days of their joining the plan, but distribution upon employment to someone who is likely to fulfill eligibility requirements is also common.
Excellent post, Christine. This is important material. Immigration enforcement is working and employers in agriculture, hospitality, restaurant and similar businesses are finding it more and more difficult to find workers. There may be an 8+% unemployment rate, but here in WA we are speaking to many farmers who cannot complete their harvests because they can’t attract people with the right skills. It’s not just all about those with education in STEM subjects. For example, we recently did a webinar for a farm group that had 100+ participants. These farmers are convinced that they can attract and retain workers only by distinguishing themselves in some way and are looking to us as a way to do that, because we offer a way for multiple employers to share the healthcare cost burden for seasonal employees who migrate from job to job. We are finding that it is not just having the appropriate communications in the right language, it is about cultural sensitivity. Many of these employees have never had access to any healthcare support, and we have seen first hand substantial suspicion about a “benefits” program. The law is mandating this, but you are one of the few I’ve seen post on the subject. Thanks for shedding light on this.
Lee – thank you for your insightful comment. No question, all of us in the benefits field must proactively address the fact that an increasing number of benefit plan participants have language and cultural issues that may delay or prevent them from taking advantage of tax-qualified benefits. I have anectodally heard from a TPA client that a full multimedia presentation on flex plan benefits, presented bilingually to a large group of prospective participants, did not succeed in getting one person to enroll. That was some time ago and hopefully is no longer the typical case, but it supports what you have described and illustrates employers’ and benefit providers’ challenges in this arena.
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