John,

I don't agree that the "plain language" requirement of the privacy
regulations requires translation of the NPP into other languages.

In its discussion of the "plain language" requirement in the preamble to
the final privacy regulations DHHS notes that Title VI of the Civil
Rights Act -- a separate statute -- generally requires entities that
receive Federal financial assistance "to provide material ordinarily
distributed to the public in the primary languages of persons with
limited English proficiency in the recipients' service areas," 65
Fed.Reg. 82461, 82549 (December 28, 2000),  thereby creating an
obligation in some cases -- for entities that are subject to Title VI --
to provide the HIPAA notice in non-English languages.  

Employer group health plans, for example, aren't subject to Title VI
(they don't receive Federal funds), and thus aren't required by Title VI
to provided notices in non-English languages.  DHHS suggests in the
preamble that "the Title VI standards provide helpful guidance [to
covered entities that are not subject to Title IV] for effectively
communicating the content of their notices to non-English speaking
populations." 65 Fed.Reg. 82461, 82549 (December 28, 2000). That's no
mandate for employer group health plans (or any other covered entity
that's not subject to Title VI) to translate NPPs into non-English
languages.  

I think the OCR advice you refer to may be its Policy Guidance on the
Prohibition Against National Origin Discrimination as it Affects Persons
with Limited English Proficiency, 65 Fed. Reg. 52762, 53768 (August 30,
2000),
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2000_register&;
docid=00-22140-filed, which creates a compliance safe harbor when an
entity covered by Title VI translates "vital documents" for groups of
limited-English proficiency individuals who are at least 5% of the
population of eligible individuals to be served.

Regarding Mr. Ermer's comment concerning SPD's, the regulation he cites
does not require "translat[ion of] such plan documents into another
language."  It merely requires that English-language summary plan
descriptions in certain instances provide a notice in a non-English
language that assistance available from the plan administrator.  See
also Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50
F.3d 1478, 1485 (9th Cir. 1995)("in no instance has the Secretary [of
Labor], after having given full consideration to the problems of
workforces that are not English-language-literate, imposed any
requirement that the operative document itself - either any summary plan
description . . . or any summary annual report . . . or any denial of
benefits such as those involved in this case . . .  - must be furnished
to employees in their native tongues.") There is no analogy to ERISA
that supports translation of the NPP into non-English lanaguages.

Charles H. Thulin
Ekman, Bohrer & Thulin, P.S.
220 West Mercer Street, Suite 400
Seattle, WA 98119
(206) 282-8221


-----Original Message-----
From: Christiansen, John (SEA) [mailto:[EMAIL PROTECTED]
Sent: Tuesday, March 18, 2003 2:43 PM
To: WEDI SNIP Privacy Workgroup List
Subject: RE: NPP in Other Languages


Folks -

The "plain language" requirement for the NPP incorporates regulatory
requirements that include translation into other languages if they are a
material element of the population you serve. I did the research well
over a
year ago so don't recall the citations, and don't have time to dig it up
just now, but I believe it was available via an OCR webpage. There are
criteria for determining what languages you need to include, and this
would
apply to any CE, not just an employer plan.

John R. Christiansen
Preston | Gates | Ellis LLP
925 Fourth Avenue, Suite 2900
Seattle, Washington 98104
*Direct: 206.370.8118 *Cell: 206.683.9125
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-----Original Message-----
From: David Ermer [mailto:[EMAIL PROTECTED]
Sent: Tuesday, March 18, 2003 1:53 PM
To: WEDI SNIP Privacy Workgroup List
Subject: Re: NPP in Other Languages


It strikes me as an attorney who represents ERISA governed health plans
that the NPP can be considered a material modification to the health
plan under the U.S. Labor Department's (DOL) rules. DOL, in contrast to
HHS, has very specific rules on distributing a summary plan description
or a summary of material modifications to a plan participant, i.e., hand
delivery, first class mail (second or third class only if return and
forwarding postage is guaranteed and address correction is requested),
or electronic delivery under certain circumstances and on when you need
to translate such plan documents into another language. If your covered
entity is governed by ERISA, I suggest that you apply these rules. If
you covered entity is not governed by ERISA, you still may find the
guidance helpful. I have quoted the foreign language and mailing
guidance below. Best regards, Dave Ermer

29 C.F.R. 2520.102-2 Style and Format of SPD:

(c) Foreign languages. In the case of either--
    (1) A plan that covers fewer than 100 participants at the beginning

of a plan year, and in which 25 percent or more of all plan
participants 
are literate only in the same non-English language, or
    (2) A plan which covers 100 or more participants at the beginning
of 
the plan year, and in which the lesser of (i) 500 or more participants,

or (ii) 10% or more of all plan participants are literate only in the 
same non-English language, so that a summary plan description in
English 
would fail to inform these participants adequately of their rights and

obligations under the plan, the plan administrator for such plan shall

provide these participants with an English-language summary plan 
description which prominently displays a notice, in the non-English 
language common to these participants, offering them assistance. The 
assistance provided need not involve written materials, but shall be 
given in the non-English language common to these participants and
shall 
be calculated to provide them with a reasonable opportunity to become 
informed as to their rights and obligations under the plan. The notice

offering assistance contained in the summary plan description shall 
clearly set forth in the non-English language common to such 
participants offering them assistance. The assistance provided need not

involve written materials, but shall be given in the non-English 
language common to these participants and shall be calculated to
provide 
them with a reasonable opportunity to become informed as to their
rights 
and obligations under the plan. The notice offering assistance
contained 
in the summary plan description shall clearly set forth in the non-
English language common to such participants the procedures they must 
follow in order to obtain such assistance.

    Example. Employer A maintains a pension plan which covers 1000 
participants. At the beginning of a plan year five hundred of Employer

A's covered employees are literate only in Spanish, 101 are literate 
only in Vietnamese, and the remaining 399 are literate in English. Each

of the 1000 employees receives a summary plan description in English, 
containing an assistance notice in both Spanish and Vietnamese stating

the following:
    ``This booklet contains a summary in English of your plan rights
and 
benefits under Employer A Pension Plan. If you have difficulty 
understanding any part of this booklet, contact Mr. John Doe, the plan

administrator, at his office in Room 123, 456 Main St., Anywhere City,

State 20001. Office hours are from 8:30 A.M. to 5:00 P.M. Monday
through 
Friday. You may also call the plan administrator's office at (202)
555-
2345 for assistance.''

29 C.F.R 2520.104b-1 Disclosure

    (a) General disclosure requirements. The administrator of an 
employee benefit plan covered by part 1 of title I of the Act must 
disclose certain material, including reports, statements and documents,

to participants and beneficiaries. Disclosure under part 1 takes three

forms. First, the plan administrator must, by direct operation of law,

furnish certain material to all participants covered under the plan and

beneficiaries receiving benefits under the plan (other than 
beneficiaries under a welfare plan) at stated times or if certain
events 
occur. Second, the plan administrator must furnish certain material to

individual participants and beneficiaries upon their request. Third,
the 
plan administrator must make certain material available to participants

and beneficiaries for inspection at reasonable times and places.
    (b) Fulfilling the disclosure obligation. (1) Where certain 
material, including reports, statements and documents, is required
under 
part 1 of the Act and this part to be furnished either by direct 
operation of law or on individual request, the plan administrator
shall
use measures reasonably calculated to ensure actual receipt of the 
material by plan participants and beneficiaries. Material which is 
required to be furnished to all participants covered under the plan and

beneficiaries receiving benefits under the plan (other than 
beneficiaries under a welfare plan) must be sent by a method or methods

of delivery likely to result in full distribution. For example, in-hand

delivery to an employee at his or her worksite is acceptable. However,

in no case is it acceptable merely to place copies of the material in a

location frequented by participants. It is also acceptable to furnish 
such material as a special insert in a periodical distributed to 
employees such as a union newspaper or a company publication if the 
distribution list for the periodical is comprehensive and up-to-date
and 
a prominent notice on the front page of the periodical advises readers

that the issue contains an insert with important information about 
rights under the plan and the Act which should be read and retained for

future reference. If some participants and beneficiaries are not on the

mailing list, a periodical must be used in conjunction with other 
methods of distribution such that the methods taken together are 
reasonably calculated to ensure actual receipt. Material distributed 
through the mail may be sent by first, second, or third-class mail. 
However, distribution by second or third-class mail is acceptable only

if return and forwarding postage is guaranteed and address correction
is 
requested. Any material sent by second or third-class mail which is 
returned with an address correction shall be sent again by first-class

mail or personally delivered to the participant at his or her
worksite.
    (2) For purposes of section 104(b)(4) of the Act, materials 
furnished upon written request shall be mailed to an address provided
by 
the requesting participant or beneficiary or personally delivered to
the 
participant or beneficiary.

 

Gordon & Barnett
Attorneys at Law
1133 21st St., NW, Suite 450
Washington, DC 20036
202-833-3400 ext 3009 (voice)
202-223-0120 (fax)
www.gordon-barnett.com

>>> Kathy Findley <[EMAIL PROTECTED]> 03/17/03 02:07PM >>>
Hello All!
I don't belive it's required according to the regulations, however,
what is
everyone doing about having a version of the NPP in Spanish or other
languages?
Kf

Kathy Findley
Coordinator - Information Services and HIPAA
St. Joseph's Hospital Health Center
Phone - (315) 448-6111
Beeper - (315) 467-4180
Text Page - [EMAIL PROTECTED] 
 

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