What - if any - obligation do you have to translate notices, disclosures and other plan documents when your workforce has a significant number of participants who are not literate in English? 

Generally speaking… 

If an employer-sponsored plan has participants who are literate in a foreign language, the Plan Administrator may be required to provide written notice - in that language - of the availability of assistance with understanding.  This general rule applies to plans with 100 or more participants if the lesser of 500 participants or 10% of the total participants are literate in a particular language. 

Specifically speaking... 

ERISA outlines the following translation requirements:

  • Summary Plan Description and Summary Annual Report - Necessary if/when a plan covers fewer than 100 participants at the beginning of the plan year in which 25% or more of all plan participants are literate only in the same non-English language-or when a plan covers 100 or more participants in which 500 or more or 10% or more of plan participants (whichever is less) are literate only in the same non-English;
  • Claims, Internal/External Appeals and Explanations of Benefits (EOBs) - Must be provided in a "culturally and linguistically" appropriate manner and must be translated/printed into the dominant foreign language if 10% of the population of a county speaks that non-English foreign language; and
  • Summary of Benefits Coverage (SBC) - Must also be provided in a "culturally and linguistically appropriate manner" if at least 10% of the population of a particular county is literate only in the same non-English language.  In addition, the issuers must provide interpretive services and written translations of the SBCC upon request into Chinese, Spanish, Navaho and Tagalong.

Say what? 

The following notices/disclosures do not have similar non-English language translation requirements.  In many instances, the DOL provides Spanish-text versions of the notices.  HUB International recommends you provide prominent notice in the non-English language common to plan participants offering assistance with the following forms:

  • COBRA Initial Notice and/or COBRA Election Notice;
  • Medicare Part D Creditable/Non-Creditable Coverage Notice;
  • Annual Dollar Limits Waivers;
  • CHIPRA/CHIP Notice;
  • Grandfathered Plan Status Notice;
  • HIPAA Privacy Practices Notice and Special Enrollment Rights Notice;
  • Annual Dollar Limits Waivers;
  • Notice of Elimination of Lifetime Limits;
  • Primary Care Designation Notice; and
  • Notice of New Dependent Eligibility.

Many industry analysts argue that PPACA increases the burden on plan sponsors to furnish notices in foreign languages by lowering the threshold, and that since July 2010 all plans must print notices in the dominant foreign language if 10% of the population of a county speaks that non-English language. 

The public policy goal should be to establish the right equilibrium by balancing the cost of accommodating many different languages with the need to provide cost-effective consumer assistance.