Culturally and Linguistically
Appropriate Provisions
“You Know It Don’t Come Easy”
Ringo Starr
Elizabeth Ysla Leight, Director
Government Relations and Legal Affairs
Society of Professional Benefit Administrators
Measuring America
According to the U.S. Bureau of the
Census, the resident population of the
United States, projected to be
XXXXXXXX
One birth every……………………7 seconds
One death every…………………12 seconds
One international migrant every..36 seconds
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Measuring America
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Population and Housing Census
American Community Survey
Population Estimates
Economic Census
Economic Indicators
Measuring America
Why is this important to you?
• In the final 3 months of 2010, the U.S.
Census released several measures of
the population.
• Including the 2009 1-year ACS
estimates for places 65,000 or more.
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Measuring America
• The demographic information, the detailed
data about the social, economic and housing
characteristics of the communities is reflected
in the American Community Survey.
• The ACS is used in determining allocation of
funding in numerous federal programs and for
decisions at state and local level.
Measuring America
• The ACS is the backbone of our
nation’s information infrastructure.
• It is different from the Census in major
ways.
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Measuring America
2010 Census
• Official counts of the entire U.S. population
for purposes of apportionment, as mandated
by the U.S. Constitution.
• Used for redistricting and as the basis for
allocation of federal funds.
• Includes basic demographic information such
as home ownership and relationship data.
Measuring America
• American Community Survey (ACS)
• Same short form questions as the
Census on the ACS.
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Measuring America
ACS: What is it?
• It is a continuous survey.
• Key component of the 2010 census program.
• Produces characteristics, not a population
count.
• Produces more current information: Annual
data rather than once every 10 years.
• Produces information for small areas: tracts,
block groups, population subgroups.
Measuring America
2010 Census Content
Sex, Age, Race, Origin, Household Relationship
ACS Content
Education, Marital Status, Fertility, Grandparent
Caregivers, Veterans, Disability Status, Place
of Birth, Citizenship, Year of Entry, Language
Spoken at Home, Ancestry/Tribal Affiliation.
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Measuring America
Economic Standards
• Income, Benefits, Employment Status,
Occupation, Industry, Commuting to
Work, Place of Work
Housing Characteristics
• Tenure, Occupancy, Structure, Housing
Value, Taxes, Mortgage, Monthly Rent,
Utilities
Measuring America
Yiddish is most primary language in
Williamsburg (Brooklyn) New York
(11211) and Monroe (Orange County –
Kiryas Yoel) New York (10950).
Anonymous Source
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Measuring America
DP-2. Profile of Selected Social Characteristics: 2000
Data Set: Census 2000 Summary File 3 (SF 3) - Sample Data
Geographic Area: 10950 5-Digit ZCTA
NOTE: Data based on a sample except in P3, P4, H3, and H4. For information on confidentiality protection, sampling error,
nonsampling error, definitions, and count correc tions see http://fac tfinder.census.gov/home/en/datanotes/expsf3.htm.
Subject
Numbe r
Percent
SCHOOL ENROLLMENT
Population 3 years and over enrolled in school
14,643
100.0
Nursery school, preschool
1,341
Kindergarten
1,016
6.9
Elementary school (grades 1-8)
7,047
48.1
9.2
High school (grades 9-12)
2,963
20.2
College or graduate school
2,276
15.5
19,567
100.0
EDUCATIONAL ATTAINMENT
Population 25 years and over
Less than 9th grade
1,162
5.9
9th to 12th grade, no diploma
2,489
12.7
High school graduate (includes equivalency)
5,872
30.0
Some college, no degree
3,873
19.8
Associate degree
1,543
7.9
Bachelor's degree
2,878
14.7
Graduate or professional degree
1,750
8.9
Percent high school graduate or higher
81.3
(X)
Percent bachelor's degree or higher
23.7
(X)
10950
LANGUAGE SPOKEN AT HOME
Population 5 years and over
34,139
100.0
English only
20,276
59.4
Language other than English
13,863
40.6
9,583
28.1
Speak English less than 'very well
Spanish
Speak English less than "very w ell"
Other Indo-European languages
Speak English less than "very w ell"
Asian and Pacific Island languages
Speak English less than "very w ell"
1,490
4.4
606
1.8
11,573
33.9
8,560
25.1
286
0.8
141
0.4
ANCESTRY (single or multiple)
Total population
38,766
100.0
Total ancestries reported
41,818
107.9
Arab
119
0.3
Czech1
263
0.7
Danish
5
0.0
358
0.9
1,346
3.5
Dutch
English
French (except Basque) 1
French Canadian1
German
Greek
372
1.0
71
0.2
4,214
10.9
120
0.3
Hungarian
2,717
7.0
Irish1
6,868
17.7
Italian
5,899
15.2
44
0.1
Lithuanian
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Measuring America
“The ACS is the first nationwide survey that can be
used to monitor annual trends in local
communities and make valid comparisons among
communities in the years between censuses”
Population Reference Bureau
Why Is This Important For
Your Clients?
• The new DOL Final Regulations significantly
simplify the requirement imposed by the Original
Regulations that notices of adverse benefit
determinations be provided in a culturally
linguistically and appropriate manner.
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Culturally and Linguistically
Appropriate
• Under the Original DOL Claims regulations,
things were complicated:
• (1) If the plan covered fewer than 100 participants
at the beginning of the plan year, the plan is
considered to comply with the culturally linguistic
and appropriate manner requirement if it provides
notices, upon request, in a language in which 25
percent or more of its participants are literate (only
in the same non-English language).
Culturally and Linguistically
Appropriate
• (2) If the plan covered 100 (or more) participants
at the beginning of the plan year, the plan is
considered to comply with this requirement if it
provides notices, upon request, in a language in
which the lesser of 500 or more participants or 10
percent of all participants are literate (only in the
same non-English language).
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Culturally and Linguistically
Appropriate
• Then DOL said that if the threshold was
satisfied, all notices must state in the
relevant non-English language indicating
that the notice will be provided upon
request in the non-English language.
Culturally and Linguistically
Appropriate
The New Final Regulations
• Replace the complex, plan-by-plan determination
on notices in a culturally linguistic and appropriate
manner imposed by the original regulations with
one single standard based on the county to
which the recipient of the notice resides.
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Culturally and Linguistically
Appropriate
The New Final Regulations:
• What does it say? Under the new standard, if at
least 10 percent of the population in the county
are literate only in a particular non-English
language and speak English less than “very
well,” as determined by the American
Community Survey data published by the United
States Census Bureau.
Culturally and Linguistically
Appropriate
The New Federal Regulations:
• This means that each notice of an adverse benefit
determination sent to a recipient with an address in
that county identified by the ACS must include
a one sentence statement in that non-English
language about the availability of language
services provided by the plan. The plan must also
provide oral language services in the non-English
language and provide written notices in the nonEnglish language upon request.
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Culturally and Linguistically
Appropriate
The New Federal Regulations:
What should Employers do?
• Which county? Find out the counties where
employee populations reside.
• The preamble to the Final Regulations contains a
current list of relevant counties and languages.
There are 255 counties (78 of which are in Puerto
Rico) that meet the threshold.
Culturally and Linguistically
Appropriate
The New Federal Regulations:
• DOL will update this guidance annually if there
are changes to the list of counties determined to
meet this 10 percent threshold.
• According to the DOL, the majority of counties,
Spanish is the relevant non-English language;
however, Chinese, Tagalog and Navajo are
present in a few counties affecting just five states,
Alaska, Arizona, California, New Mexico and
Utah.
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Culturally and Linguistically
Appropriate
The New Federal Regulations
• Eliminate the “tagging and tracking” requirement
for all subsequent notices to a claimant who
requested a notice in an applicable non-English
language had to be in that language.
• DOL requires that the English versions of all
notices include a prominently displayed statement
in any applicable non-English language
describing how to access the language services
provided by the plan.
Culturally and Linguistically
Appropriate
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The New Federal Regulations
Targeted notices are not required.
The statements may be included in all notices.
The Agencies have published model notices that
contain sample statements in each of the relevant
languages.
Model Notice:on the DOL website at
http://www.dol.gov/ebsa/healthreform/.
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Culturally and Linguistically
Appropriate
The New Federal Regulations
Insert language assistance disclosure here, if applicable.
• 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].
Culturally and Linguistically
Appropriate
The New Federal Regulations
Oral Language Services/Hotlines
The plan or issuer must provide oral language
services (such as a telephone customer assistance
hotline) in any applicable non-English language
and, upon request, must provide a written
translation of any notice in any applicable nonEnglish language.
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Culturally and Linguistically
Appropriate
• The Original Federal Regulations
contained a Strict Compliance
Provision:
• Would allow claimants to bypass the
internal appeals process if the plan fails
to strictly comply with the procedural
requirements.
Culturally and Linguistically
Appropriate
The New Federal Regulations
• Exception to this strict compliance
requirement for errors that are minor
and meet certain other requirements.
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Culturally and Linguistically
Appropriate
The New Federal Regulations
• Claimants will be required to exhaust internal
administrative remedies despite a failure of a
plan to strictly comply if the failure was:
• de minimis;
• non-prejudicial to the claimant;
• attributable to good cause or matters beyond the
control of the plan or insurer;
• in the context of an ongoing good-faith exchange of
information; and not a pattern or practice of
noncompliance.
Culturally and Linguistically
Appropriate
Is the language requirement de minimis? Probably.
• ERISA Claims Review Regulations: DOL “not
every deviation by a plan from the requirements of
the ERISA Claims Regulation permits a claimant
to exhaust the plan’s internal review procedures
and file suit.”
• If the plan’s procedures provide an opportunity to
effectively remedy the inadvertent deviation
without prejudice to the claimant, then there will
not have been a failure to establish or follow
reasonable procedures by the ERISA Claims
Regulations.
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“It Don’t Come Easy”
Ringo Starr
Measuring America vs
Culturally and Linguistically Appropriate
• Know your client and their employees.
• Know the facts about the “community” their
employees come from and requirements they
must meet.
• Find out extend of language services needed
by your client’s employees.
• Are language changes necessary or de
minimus?
Measuring American Workers
Another Major Difference Between Census and ACS
is the ACS Methodology
• Questionnaire is mailed every month of every year
to a random sample of addresses
• No address will receive a form more than once
every 5 years
• Subjects mail-back information
• Computer assisted telephone interviewing for nonresponse
• Computer assisted personal interviewing of a
sample of the remaining unanswered forms.
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Measuring American Workers
Reference Period
• The Census uses April 1 as the base for
most questions. Some questions use 1999 as
a reference year.
• ACS reference varies based on which
month the form is mailed.
Measure American Workers
Residency Rules
Decennial Census
• Usual place of residence is the standard
ACS
• Current residence, based on a two-month
rule, with some exceptions.
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Other Implications
GINA/ADA/FMLA/HIPAA
• To the extent that employers must provide
information to participants of the welfare
benefit plan…
• Notices, authorization forms, releases
• Must must be written in a way to describe the
general purpose of the information sought
and restrictions on disclosure of the
information.
Other implications
Collection of personal health information for
Wellness Programs, employment, etc.
• The employee must give a knowing, voluntary
written authorization.
Authorization form must be in a way that:
• The person from whom the information is
obtained reasonably understands the form.
• Describes the information being sought.
• Describes the restrictions on disclosure of the
information.
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The Final Word
• When referencing the tables on ACS
remember that the population,
especially in urban areas can change
substantially within a six month period.
• Rely on your client employers, for
information on which languages must
be provided on any notices and
documents.
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