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.

Standards for Culturally and Linguistically Appropriate Notices

Interim Final Rule(July 23, 2010)

Interim Final Rule Amendments(June 24, 2011)

Must provide notices upon request in non-English language if plan population meets certain thresholds (25% for small plans; the lesser of 10% or 500 participants for large plans) for participants literate only in same non-English language. If request for non-English language notices is made, all subsequent notices must be in the non-English language (the “tagging and tracking requirement”)

Must provide notices upon request in non-English language if address to which notice is sent is located in county (an “applicable county”) where ten percent or more of population is literate only in same non-English language. Agencies will publish and update list of counties. Tagging and tracking requirement is deleted.

If threshold is met, must include in English version of all notices a statement in the non-English language offering provision of notices in the non-English language.

If threshold is met, must include in English version of all notices a statement in the non-English language indicating how to access language services provided by the plan or issuer.  (Model statements have been provided here and here.)

If threshold is met and the plan or issuer maintains a customer assistance process (e.g., telephone hotline) that answers questions or provides assistance with filing claims and appeals, must provide assistance in non-English language.

Regardless of whether plan or issuer previously provided such services, if notice is to be sent to an applicable county, must provide oral language services (such as a telephone customer assistance hotline) that include answering questions in any applicable non-English language and providing assistance with filing claims and appeals (including external review) in any applicable non-English language.

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.