The Regulation: 29 CFR 2560.503-1 Claims Procedure.
(o)Standards for culturally and linguistically appropriate notices. A plan is considered to provide relevant notices in a “culturally and linguistically appropriate manner” if the plan meets all the requirements of paragraph (o)(1) of this section with respect to the applicable non-English languages described in paragraph (o)(2) of this section.
(i) The plan 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 in any applicable non-English language;
(ii) The plan must provide, upon request, a notice in any applicable non-English language; and
(iii) The plan must include in the English versions of all notices, a statement prominently displayed in any applicable non-English language clearly indicating how to access the language services provided by the plan.
(2)Applicable non-English language. With respect to an address in any United States county to which a notice is sent, a non-English language is an applicable non-English language if ten percent or more of the population residing in the county is literate only in the same non-English language, as determined in guidance published by the Secretary.
The newly revised ERISA claims procedures include requirements for plans to provide (1) culturally and linguistically appropriate oral language services, (2) notices in any applicable non-English language (upon request); and (3) statements in the English version of notices, written in the applicable non-English language, clearly indicating how to access the language services provided in the plan. A non-English language is an applicable non-English language under the plan if the address to which a notice is sent is in a county in which ten percent or more of the population residing is literate only in that non-English language.
Presumably this revision is aimed at culturally and linguistically insular communities in the United States, as opposed to being aimed at accommodating every plan participant who happens to have English as a second language or who happens to be non-English speaking regardless of where she lives. A non-English speaking person whose language is not an applicable language under the plan because her county does not fit the criteria set forth in the rule would presumably be allowed by the plan to use the oral language services available to those who speak her non-English language and live in a county which makes the language an applicable language under the plan. But she would not have a right to obtain notices in her language. Nor would a notice in her language informing her of these rights appear in the English version of notices she receives.
One final note. The Department of Labor in its Summary Information identifies, but does not directly address, the problem that could arise if the English and the applicable non-English language notices are conflicting. Courts will have to decide which notice is the operative one for claims and litigation purposes. This would be a problem analogous to cases in which the summary plan description differs from the plan itself, though it may be the case that not only the rules of the plan but also the reasoning in an adverse determination or the facts as set forth may differ in the English and applicable non-English versions of notices.