Important Reminder about COBRA Notices (article)
A class action lawsuit provides a good reminder about the importance of COBRA notification. This challenge, Vazquez v. Marriott Int’l, Inc., 2018 WL 1988875 (M.D. Fla. 2018), relates to the sufficiency of COBRA notices on two levels.
The first point argues that the COBRA notice was not provided in the individual’s native language. Notably, the COBRA law does not specifically require that COBRA information be provided in an individual’s native language; although, the model COBRA notice and election forms provided by the Department of Labor (DOL) are available in both English and Spanish. Other benefit notices have language requirements, such as the summary plan description (SPD), the summary of benefits and coverage (SBC), as well as notices relating to claims and appeals, and internal and external review processes.
The DOL regulations require summary plan descriptions, summary of material modifications, and other relevant plan documents, be provided in native tongue; specifically:
- If the plan has 100 or fewer participants, and if 25% or more of the participants speak the same foreign language, the documents must be prepared in that language.
- For plans with 100 or more participants, the documents must be prepared in the foreign language if 10% or more of the participants, or 500 or more of employees, speak the same foreign language.
The summary of benefits and coverage (SBC), as well as the required notices and disclosures issued under the claims procedures, and internal and external review processes must be written in a culturally and linguistically appropriate manner. The specific language requirement is based on the number of non-English speaking individuals residing within a geographic area, rather than by the number of non-English speaking individuals participating in the plan. This means that when a county population where 10% of the claimant’s county is literate only in the same non-English language(s), then plans and insurers are required to provide communications in the appropriate non-English language. In addition, the plan is required to provide a customer assistance process, such as a telephone hotline, with oral language services available in the appropriate non-English language.
The second challenge of this class action lawsuit argues that the contents of the COBRA notice was insufficient in that it was not described in a manner understandable to the reader with regard to the election procedures or the identity of the plan administrator.
We do not yet know the outcome of this litigation. Nevertheless, it is important to ensure that all benefit communications are written in a manner that can be easily understood by the reader.