What's That You Say? The New Requirements for Foreign Language EOBs

July 26, 2011 (PLANSPONSOR.com) - The interim final rule (IFR) for claims and appeals under PPACA introduced a concept of providing health plan explanations of benefit (EOBs) in a "culturally and linguistically appropriate manner.”

 

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That means translated into a foreign language for plans that met certain thresholds.  The latest amendment to these regulations changed this rule.  So, what exactly must plans do now?

Must a health plan keep track of those who do not speak English?

Not in order to provide EOBs.  The prior rule under the IFR had been that a group health plan must provide foreign language notices upon request where the plan had at least 500 or more participants (or 10% of participants if less) that were literate only in the same non-English language.  Under this rule, plans had to determine the best way to identify non-English speakers and then provide claims and appeals notices to them in their non-English language.  Plans had many questions about exactly how to determine if they met the threshold and if they legally were even allowed to ask participants about what languages they spoke.  As described below, the new amendment changed this rule.  Note that plans may still need to track this type of information in order to provide SPDs, where there is a similar foreign language rule.

When must plans provide foreign language EOBs under the new amendment?

The amendment to the IFR removes the requirement that a plan identify those who speak a foreign language and instead, adopts a county chart from the U.S. Census Bureau that shows where 10% or more of the population are literate only in the same non-English language.  The chart can be found in the Preamble to the amendment (available at www.dol.gov/ebsa). 

The amendment requires that any EOBs mailed to address in one of these counties must include a one-sentence statement in the applicable non-English language that informs readers as to how they may obtain a notice or language assistance services in that language.  The languages included in the U.S. Census Bureau chart are Spanish, Mandarin, Tagalog (primarily found in Alaska), and Navajo.  The Department of Labor issued model notices that include the required one-sentence statement translated into the four languages (so plans can copy/paste these sentences, where applicable).  See www.dol.gov/ebsa.

If we send an EOB to a listed county, what must be do?

For plans sending EOBs to an address in a county listed in the U.S. Census Bureau chart, the plan must prominently display a one-sentence statement in the applicable language that explains how to access language services and request the notice in the foreign language (the DOL website has model notices with the translated statement).  The plan also must provide the notice in the non-English language, upon request.  In addition, the plan must provide oral language services, such as a telephone customer assistance hotline that answers questions and provides assistance with filing claims and appeals, in the applicable non-English language. 

If our plan has determined we have no foreign language speakers in that county, must we still add the foreign language statement?

It appears so.  The amendment replaced the self-identification standard in the IFR with a new rule that any EOB mailed to a listed county must include the foreign language statement.  The new county list is not a safe harbor, but a requirement.

When is this requirement effective?

The amendment is effective July 22, 2011.  However, the agencies had already issued an enforcement grace period for the foreign language EOB requirement, which they indicated they will continue to honor.  This means that the agencies will not begin enforcing this provision until plan years beginning on or after January 1, 2012.

Got a health-care reform question?  You can ask YOUR health-care reform legislation question online at http://www.surveymonkey.com/s/second_opinions 

You can find a handy list of Key Provisions of the Patient Protection and Affordable Care Act and their effective dates at http://www.groom.com/HCR-Chart.html  

Contributors:

Christy Tinnes is a Principal in the Health & Welfare Group of Groom Law Group in Washington, D.C.  She is involved in all aspects of health and welfare plans, including ERISA, HIPAA portability, HIPAA privacy, COBRA, and Medicare.  She represents employers designing health plans as well as insurers designing new products.  Most recently, she has been extensively involved in the insurance market reform and employer mandate provisions of the health-care reform legislation.

Brigen Winters is a Principal at Groom Law Group, Chartered, where he co-chairs the firm's Policy and Legislation group. He counsels plan sponsors, insurers, and other financial institutions regarding health and welfare, executive compensation, and tax-qualified arrangements, and advises clients on legislative and regulatory matters, with a particular focus on the recently enacted health-reform legislation.

PLEASE NOTE:  This feature is intended to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice. 

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