Insights

Plan documents don’t automatically have to be provided in non-English languages. Instead, the SPD/SMM/SAR regulations and the SBC and appeals requirements under the ACA have different ways that they require employers to acknowledge employees who may speak another language and provide them with the opportunity to receive assistance.

SPD/SMM/SAR
There is no specific ERISA requirement to provide SPDs or SMMs or SARs in non-English languages. However, plans that cover certain amounts of participants who are literate only in the same non-English language must provide some assistance in that non-English language. Whether a plan must provide assistance in a non-English language depends on the size of the plan and the number of plan participants that are literate only in the same non-English language, as follows:

• A large plan (one covering 100 or more participants) must provide language assistance if the lesser of (a) 10% of participants, or (b) 500 participants (or more) are literate only in the same language.
• A small plan (one covering fewer than 100 participants) must provide language assistance if 25% or more of the participants are literate only in the same language. 

The SPD (or SMM or SAR) for a plan subject to this requirement must include a statement, in the applicable non-English language, offering language assistance and clearly explaining the procedures that individuals must follow to obtain that assistance. Practically, the employer should actually provide access to such assistance and it’s best if the language about the availability of non-English language assistance is clearly stated in the SPD or SMM (either at the beginning or on the cover).

SBC/Appeals Notices
The ACA requires that the SBC and appeals notices be presented in a “culturally and linguistically appropriate manner.” In general, those rules provide that in specified counties of the United States, plans and insurers must provide interpretive services and written translations upon request, in certain non-English languages. The applicable counties are those in which at least 10% of the population residing in the county is literate only in the same non-English language—this determination is based on U.S. Census data and includes four languages: Spanish, Chinese, Tagalog, and Navajo. The initial list of applicable counties was set forth in the amended interim final regulations relating to appeals notices; the HHS website provides a current list. (Access the most recent list from CMS.gov.)

To comply with the language requirement, SBCs and appeals notices sent to addresses in an applicable county must include a one-sentence statement clearly indicating how to access the language services provided by the plan (or insurer). This statement should be included on the page of the SBC with the “Your Rights to Continue Coverage” and “Your Grievance and Appeals Rights” sections. Written translations of the SBC or appeals notices must be provided upon request in the required non-English languages.

In order to assist with compliance with this language requirement, written translations of the SBC template and uniform glossary in the four applicable languages are available on the HHS website. An oral translation (in MP3 format) is available in Navajo.

Summary
Employers are not necessarily required to provide entire documents in non-English languages, unless a participant asks for them. The regulations do require that certain plan documents and notices include some information in different languages that notifies participants of their right to ask for translated information (as outlined above).