How to Comply with COBRA Without Getting Bit

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Julie Athey

Attorney

M . L E E S M I T H P U B L I S H E R S L L C

B r e n t w o o d , Te n n e s s e e

How to Comply with

COBRA Without

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This special report provides practical information concerning the

subject matters covered. It is sold with the understanding that neither

the publisher nor the writer is rendering legal advice or other

professional service. Some of the information provided in this special

report contains a broad overview of federal law. The law changes

regularly, and the law may vary from state to state and from one

locality to another.You should consult a competent attorney in your

state if you are in need of specific legal advice concerning any of the

subjects addressed in this special report.

© 2005 M. Lee Smith Publishers LLC

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All rights reserved. No part of this book may be reproduced

or transmitted in any form or by any means without

permission in writing from the publisher.

Printed in the United States of America

ISBN 0-925773-84-0

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INTRODUCTION

... 1

1 — BACKGROUND AND BASICS

... 3

COBRA Requirements in General ... 4

Terminology ... 4

2 — ARE YOU REQUIRED TO COMPLY WITH COBRA?

... 7

Are You a Small Employer? ... 7

Churches and Government Employers ... 10

Business Reorganizations ... 10

3 — WHAT IS A GROUP HEALTH PLAN?

... 11

Dental and Vision Benefits ... 11

Flexible Spending Accounts ... 12

Health Savings Accounts ... 13

Health Reimbursement Arrangements ... 13

Employee Assistance Programs ... 14

Medical Savings Accounts ... 14

4 — UNDERSTANDING CONTINUATION COVERAGE

... 15

Qualified Beneficiaries ... 15

Qualifying Events ... 16

5 — UNDERSTANDING THE NOTICE REQUIREMENTS

... 23

Methods of Providing Notice to Employees ... 23

General Notice to New Employees ... 24

Notices Required After a Qualifying Event ... 26

6 — UNDERSTANDING ELECTION RIGHTS

... 31

Coverage During Election Period ... 31

Effect of Early Waiver ... 32

Type of Coverage Elected ... 32

Payment of Premiums ... 33

7 — CUTTING OFF CONTINUATION COVERAGE

... 35

Obtaining Other Group Health Insurance ... 35

Nonpayment of Premiums ... 37

Termination for Cause ... 37

8 — UNDERSTANDING COBRA’S INTERACTION WITH HIPAA

... 39

Preexisting Condition Exclusions ... 39

When an Employee Is Fired ... 41

9 — UNDERSTANDING COBRA’S INTERACTION WITH OTHER LAWS

... 43

FMLA ... 43

USERRA ... 44

State “COBRA” Laws ... 44

Medicare ... 45

NOTES

... 47

APPENDICES

... 49

Appendix A: Model General Notice ... 49

Appendix B: Model Election Notice ... 52

iv

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Introduction

O

f all the federal laws governing the workplace, the Consolidated

Omnibus Budget Reconciliation Act of 1985 (COBRA) is at the

top of the list in terms of complexity and confusion. It sounds

like such a simple law, and its intent was certainly noble. It’s

basi-cally a safety net for employees and their families to keep them

from having lapses in their health insurance when they’re in

between jobs or other major events happen in their lives — like getting

sep-arated or divorced. But what started out as a seemingly simple premise has

evolved into a monolithic jumble of statutes, regulations, and regulatory

doc-uments. Not to mention the morass of case law interpreting what the law

and regulations say and require.

Unfortunately, COBRA is one of those acronyms that make most

employers’ eyes glaze over when they hear it. But no matter how much you

want to ignore it, it’s not going to go away.We’re writing this report as a sort

of guide through the wilderness for employers. Our mission is to provide

you with a plain-English overview of COBRA (as much as that’s humanly

possible) and a road map to understanding its many complexities.

1

One word of caution: It is impossible to answer every question that

may arise about COBRA compliance in a report of this size. In fact, this

report really only scratches the surface. For many questions that arise about

COBRA, consulting a competent benefits attorney is the only way to be

completely sure of compliance.

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1

C

OBRA was passed in 1986 in an effort to help employees (and

their family members) avoid the loss of their health insurance when

they lost their jobs or experienced other events that would

other-wise cause them to lose coverage. Although the law’s requirements

continue to be referred to collectively as “COBRA,” its provisions

actually appear in the Employee Retirement Income Security Act

(ERISA) and the Internal Revenue Code (IRC).

2

The U.S. Department of Labor (DOL) is responsible for interpreting

and administering the COBRA provisions that appear in ERISA, while the

Internal Revenue Service (IRS) is responsible for interpreting and enforcing

the provisions that appear in the IRC.The two agencies share responsibility

for enforcing COBRA.That means there are two sets of regulations

inter-preting COBRA, one set that’s issued by the DOL, and another that’s issued

by the IRS. It can be very confusing trying to figure it all out.We’re

explain-ing this now because this report will touch on various principles that apply

generally to ERISA plans, and you need to understand how that law is

involved.

Since 1999, the IRS and DOL have been quite busy issuing proposed

and final regulations interpreting the various requirements imposed by

COBRA that appear in ERISA and the Internal Revenue Code.The IRS

issued its final COBRA regulations, which generally address the law’s

con-tinuation coverage requirements, in 2001.The DOL didn’t issue its final

reg-ulations interpreting COBRA’s notice requirements until mid-2004. Prior

to the final regulations, the agencies went through several different sets of

proposed regulations.

What this all means is that, in the last five years or so, employers have

had to comply with ever-changing requirements under COBRA. Although

the regulations appear to have stabilized with the DOL’s issuance of final

notice regulations in mid-2004, many employers still need to get their plan

documents and procedures up to date. For example, the final notice

regula-tions are effective for most plans sometime in calendar year 2005.Whenever

mention is made in this report of a regulatory requirement, you can assume

that we’re referring to the current requirement under the final regulations.

We’ll point out the most recently added requirements as we go along so that

you can make sure your plan is up to date.

3

3 Background and Basics

Many

employers

still need

to get their

plan documents

and procedures

up to date.

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How to Comply with COBRA Without Getting Bit

4 COBRA REQUIREMENTS IN GENERAL

In general, COBRA requires most employers that sponsor group

health plans to let employees (and their dependents) keep their coverage

under those plans, at their own expense, after something happens that would

otherwise make them lose coverage. So, for example, if you have an employee

that gets divorced, COBRA gives her husband the option of staying on your

health plan for up to 36 months.

The law also requires employers to comply with several notice

requirements to inform employees and their dependents of their rights to

continued health coverage under COBRA. Separate notices must be given

to employees (and their spouses) when they first start participating in your

plan and to employees and dependents after they experience an event that

would cause them to lose coverage under your plan. Of course, there are

some qualifying events that you may not know about unless an employee or

other qualified beneficiary tells you — such as divorce or a child’s loss of

dependent status.When those types of qualifying events occur, the

benefi-ciary must follow certain notice procedures so that you can fulfill your

COBRA obligations in a timely manner. See Section 5 — Understanding

the Notice Requirements.

If a plan does not comply with COBRA, the IRC imposes an excise

tax on the employer maintaining the plan (or on the plan itself). ERISA, on

the other hand, gives certain parties — including qualified beneficiaries and

the DOL — the right to file a lawsuit to redress the noncompliance. An

employer that fails to comply with COBRA’s requirements may be subject

to a penalty of up to $110 for each day of noncompliance. Or worse, if the

violation causes an individual to be without health coverage and the

vidual sues the employer, a court could find the employer liable for the

indi-vidual’s medical expenses. And some courts have even required employers to

pay attorneys’ fees and other costs associated with the litigation.

TERMINOLOGY

Before you can even begin to understand and comply with COBRA,

you must have a good working knowledge of the terminology.To start you

out, here are some of the key terms you need to know to follow along in

any discussion of COBRA’s requirements. Of course, the legal definition of

each of these terms is far more complicated than the explanation we’ve

pro-vided here. There’s plenty of time to go into those definitions in painful

detail later on in this report.

• A covered employer

is one that is required to comply with COBRA

— generally, employers that have at least 20 employees and sponsor

a group health plan for their employees.

• Continuation coverage

is the group health plan coverage that

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to maintain for a limited period of time (usually 18 or 36 months)

after they would otherwise become ineligible for it (this is

some-times referred to as COBRA coverage in this report).

• A covered employee

is an employee who qualifies for COBRA

cover-age.

• A

qualified beneficiary

is anyone (generally, employees and their

dependents) who qualifies for continuation coverage under

COBRA.

• A qualifying event

is an event that triggers the right to COBRA

continuation coverage.

Putting all these terms together, COBRA requires (among other

things) covered employers

to offer continuation coverage

to covered employees

and

other qualified beneficiaries upon the occurrence of a qualifying event.

There,

now isn’t that simple?

5

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APPENDIX B: MODEL ELECTION NOTICE

MODEL COBRA CONTINUATION COVERAGE ELECTION NOTICE (For use by single-employer group health plans)

[Enter date of notice]

Dear: [Identify the qualified beneficiary(ies), by name or status]

This notice contains important information about your right to continue your health care coverage in the [enter name of group health plan] (the Plan).Please read the information contained in this notice very carefully.

To elect COBRA continuation coverage, follow the instructions on the next page to complete the enclosed Election Form and submit it to us.

If you do not elect COBRA continuation coverage, your coverage under the Plan will end on [enter date] due to [check appropriate box]:

❏End of employment ❏Reduction in hours of employment

❏Death of employee ❏Divorce or legal separation

❏Entitlement to Medicare ❏Loss of dependent child status

Each person (“qualified beneficiary”) in the category(ies) checked below is entitled to elect COBRA continuation coverage, which will continue group health care coverage under the Plan for up to ___ months [enter18 or36,as appropriate and check appropriate box or boxes; names may be added]:

❏Employee or former employee

❏Spouse or former spouse

❏Dependent child(ren) covered under the Plan on the day before the event that caused the loss of coverage

❏Child who is losing coverage under the Plan because he or she is no longer a dependent under the Plan

If elected, COBRA continuation coverage will begin on [enter date] and can last until [enter date].

[Add, if appropriate:You may elect any of the following options for COBRA continuation coverage: [list available coverage options].

COBRA continuation coverage will cost: [enter amount each qualified benefi-ciary will be required to pay for each option per month of coverage and any other permitted coverage periods.] You do not have to send any payment with the Election Form. Important additional information about payment for COBRA continuation cover-age is included in the pcover-ages following the Election Form.

If you have any questions about this notice or your rights to COBRA con-tinuation coverage, you should contact [enter name of party responsible for COBRA administration for the Plan, with telephone number and address].

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COBRA CONTINUATION COVERAGE ELECTION FORM

INSTRUCTIONS: To elect COBRA continuation coverage, com-plete this Election Form and return it to us. Under federal law, you must have 60 days after the date of this notice to decide whether you want to elect COBRA continuation coverage under the Plan.

Send completed Election Form to: [Enter Name and Address]

This Election Form must be completed and returned by mail [or describe other means of submission and due date]. If mailed, it must be post-marked no later than [enter date].

If you do not submit a completed Election Form by the due date shown above, you will lose your right to elect COBRA continuation cov-erage. If you reject COBRA continuation coverage before the due date, you may change your mind as long as you furnish a completed Election Form before the due date. However, if you change your mind after first rejecting COBRA continuation coverage, your COBRA continuation coverage will begin on the date you furnish the completed Election Form.

Read the important information about your rights included in the pages after the Election Form.

I (We) elect COBRA continuation coverage in the [enter name of plan] (the Plan) as indicated below:

Name Date of Birth Relationship to Employee SSN (or other identifier) a. _______________________________________________________________ [Add if appropriate:Coverage option elected: _____________________________] b. _______________________________________________________________ [Add if appropriate:Coverage option elected: _____________________________] c. _______________________________________________________________ [Add if appropriate:Coverage option elected: _____________________________] ______________________________ ________________________________ Signature Date

______________________________ ________________________________ Print Name Relationship to individual(s) listed above

______________________________ ______________________________

______________________________ ________________________________ Print Address Telephone number

IMPORTANT INFORMATION

ABOUT YOUR COBRA CONTINUATION COVERAGE RIGHTS

What is continuation coverage?

Federal law requires that most group health plans (including this Plan) give employees and their families the opportunity to continue their health care coverage

when there is a “qualifying event” that would result in a loss of coverage under an

53

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employer’s plan. Depending on the type of qualifying event,“qualified beneficiaries” can include the employee (or retired employee) covered under the group health plan, the covered employee’s spouse, and the dependent children of the covered employee.

Continuation coverage is the same coverage that the Plan gives to other par-ticipants or beneficiaries under the Plan who are not receiving continuation cover-age. Each qualified beneficiary who elects continuation coverage will have the same rights under the Plan as other participants or beneficiaries covered under the Plan, including [add if applicable:open enrollment and] special enrollment rights.

How long will continuation coverage last?

In the case of a loss of coverage due to end of employment or reduction in hours of employment, coverage generally may be continued only for up to a total of 18 months. In the case of losses of coverage due to an employee’s death, divorce or legal separation, the employee’s becoming entitled to Medicare benefits or a dependent child ceasing to be a dependent under the terms of the plan, coverage may be continued for up to a total of 36 months.When the qualifying event is the end of employment or reduction of the employee’s hours of employment, and the employee became entitled to Medicare benefits less than 18 months before the qualifying event, COBRA continuation coverage for qualified beneficiaries other than the employee lasts until 36 months after the date of Medicare entitlement.This notice shows the maximum period of continuation coverage available to the quali-fied beneficiaries.

Continuation coverage will be terminated before the end of the maximum period if:

• any required premium is not paid in full on time,

• a qualified beneficiary becomes covered, after electing continuation cover-age, under another group health plan that does not impose any pre-existing condition exclusion for a pre-existing condition of the qualified beneficiary, • a qualified beneficiary becomes entitled to Medicare benefits (under Part

A, Part B, or both) after electing continuation coverage, or

• the employer ceases to provide any group health plan for its employees. Continuation coverage may also be terminated for any reason the Plan would terminate coverage of a participant or beneficiary not receiving continua-tion coverage (such as fraud).

[If the maximum period shown on page 1 of this notice is less than 36 months, add the following three paragraphs:]

How can you extend the length of COBRA continuation coverage?

If you elect continuation coverage, an extension of the maximum period of coverage may be available if a qualified beneficiary is disabled or a second qualifying event occurs.You must notify [enter name of party responsible for COBRA administra-tion] of a disability or a second qualifying event in order to extend the period of continuation coverage. Failure to provide notice of a disability or second qualifying event may affect the right to extend the period of continuation coverage.

Disability

An 11-month extension of coverage may be available if any of the qualified beneficiaries is determined by the Social Security Administration (SSA) to be dis-abled.The disability has to have started at some time before the 60th day of COBRA continuation coverage and must last at least until the end of the 18-month period of continuation coverage. [Describe Plan provisions for requiring notice of disability determina-tion, including time frames and procedures.] Each qualified beneficiary who has elected continuation coverage will be entitled to the 11-month disability extension if one of them qualifies. If the qualified beneficiary is determined by SSA to no longer be dis-abled, you must notify the Plan of that fact within 30 days after SSA’s determination.

Second Qualifying Event

An 18-month extension of coverage will be available to spouses and depen-dent children who elect continuation coverage if a second qualifying event occurs during the first 18 months of continuation coverage. The maximum amount of

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continuation coverage available when a second qualifying event occurs is 36 months. Such second qualifying events may include the death of a covered employee, divorce or separation from the covered employee, the covered employee’s becoming entitled to Medicare benefits (under Part A, Part B, or both), or a depen-dent child’s ceasing to be eligible for coverage as a dependepen-dent under the Plan.These events can be a second qualifying event only if they would have caused the quali-fied beneficiary to lose coverage under the Plan if the first qualifying event had not occurred.You must notify the Plan within 60 days after a second qualifying event occurs if you want to extend your continuation coverage.

How can you elect COBRA continuation coverage?

To elect continuation coverage, you must complete the Election Form and furnish it according to the directions on the form. Each qualified beneficiary has a separate right to elect continuation coverage. For example, the employee’s spouse may elect continuation coverage even if the employee does not. Continuation cov-erage may be elected for only one, several, or for all dependent children who are qualified beneficiaries. A parent may elect to continue coverage on behalf of any dependent children.The employee or the employee’s spouse can elect continuation coverage on behalf of all of the qualified beneficiaries.

In considering whether to elect continuation coverage, you should take into account that a failure to continue your group health coverage will affect your future rights under federal law. First, you can lose the right to avoid having pre-existing condi-tion exclusions applied to you by other group health plans if you have more than a 63-day gap in health coverage, and election of continuation coverage may help you not have such a gap. Second, you will lose the guaranteed right to purchase individual health insurance policies that do not impose such pre-existing condition exclusions if you do not get continuation coverage for the maximum time available to you. Finally, you should take into account that you have special enrollment rights under federal law.You have the right to request special enrollment in another group health plan for which you are otherwise eligible (such as a plan sponsored by your spouse’s employer) within 30 days after your group health coverage ends because of the qualifying event listed above. You will also have the same special enrollment right at the end of continuation coverage if you get continuation coverage for the maximum time available to you.

How much does COBRA continuation coverage cost?

Generally, each qualified beneficiary may be required to pay the entire cost of continuation coverage.The amount a qualified beneficiary may be required to pay may not exceed 102 percent (or, in the case of an extension of continuation coverage due to a disability, 150 percent) of the cost to the group health plan (including both employer and employee contributions) for coverage of a similarly situated plan partici-pant or beneficiary who is not receiving continuation coverage.The required payment for each continuation coverage period for each option is described in this notice.

[If employees might be eligible for trade adjustment assistance, the following informa-tion may be added:The Trade Act of 2002 created a new tax credit for certain indi-viduals who become eligible for trade adjustment assistance and for certain retired employees who are receiving pension payments from the Pension Benefit Guaranty Corporation (PBGC) (eligible individuals). Under the new tax provisions, eligible individuals can either take a tax credit or get advance payment of 65% of premiums paid for qualified health insurance, including continuation coverage. If you have questions about these new tax provisions, you may call the Health Coverage Tax Credit Customer Contact Center toll-free at 1-866-628-4282.TTD/TTY callers may call toll-free at 1-866-626-4282. More information about the Trade Act is also available at www.doleta.gov/tradeact/2002act_index.asp.

When and how must payment for COBRA continuation coverage be made?

First payment for continuation coverage

If you elect continuation coverage, you do not have to send any payment with the Election Form. However, you must make your first payment for continuation cov-erage not later than 45 days after the date of your election. (This is the date the

Elec-55

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tion Notice is post-marked, if mailed.) If you do not make your first payment for con-tinuation coverage in full not later than 45 days after the date of your election, you will lose all continuation coverage rights under the Plan.You are responsible for making sure that the amount of your first payment is correct.You may contact [enter appropriate contact information, e.g., the Plan Administrator or other party responsible for COBRA adminis-tration under the Plan] to confirm the correct amount of your first payment.

Periodic payments for continuation coverage

After you make your first payment for continuation coverage, you will be required to make periodic payments for each subsequent coverage period.The amount due for each coverage period for each qualified beneficiary is shown in this notice.The periodic payments can be made on a monthly basis. Under the Plan, each of these periodic payments for continuation coverage is due on the [enter due day for each monthly payment] for that coverage period. [If Plan offers other payment schedules, enter with appro-priate dates:You may instead make payments for continuation coverage for the follow-ing coverage periods, due on the followfollow-ing dates:]. If you make a periodic payment on or before the first day of the coverage period to which it applies, your coverage under the Plan will continue for that coverage period without any break.The Plan [select one:

will orwill not] send periodic notices of payments due for these coverage periods.

Grace periods for periodic payments

Although periodic payments are due on the dates shown above, you will be given a grace period of 30 days after the first day of the coverage period [or enter longer period per-mitted by Plan] to make each periodic payment.Your continuation coverage will be pro-vided for each coverage period as long as payment for that coverage period is made before the end of the grace period for that payment. [If Plan suspends coverage during grace period for nonpayment, enter and modify as necessary:However, if you pay a periodic payment later than the first day of the coverage period to which it applies, but before the end of the grace period for the coverage period, your coverage under the Plan will be suspended as of the first day of the coverage period and then retroactively reinstated (going back to the first day of the coverage period) when the periodic payment is received.This means that any claim you submit for benefits while your coverage is suspended may be denied and may have to be resubmitted once your coverage is reinstated.]

If you fail to make a periodic payment before the end of the grace period for that coverage period, you will lose all rights to continuation coverage under the Plan. Your first payment and all periodic payments for continuation coverage should be sent to:

[enter appropriate payment address]

For more information

This notice does not fully describe continuation coverage or other rights under the Plan. More information about continuation coverage and your rights under the Plan is available in your summary plan description or from the Plan Administrator.

If you have any questions concerning the information in this notice, your rights to coverage, or if you want a copy of your summary plan description, you should contact [enter name of party responsible for COBRA administration for the Plan, with telephone number and address].

For more information about your rights under ERISA, including COBRA, the Health Insurance Portability and Accountability Act (HIPAA), and other laws affecting group health plans, contact the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) in your area or visit the EBSA website at www.dol.gov/ebsa. (Addresses and phone numbers of Regional and District EBSA Offices are available through EBSA’s website.)

Keep Your Plan Informed of Address Changes

In order to protect your and your family’s rights, you should keep the Plan Administrator informed of any changes in your address and the addresses of family members.You should also keep a copy, for your records, of any notices you send to the Plan Administrator.

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57 About the Author

E

mployment law attorney Julie Athey has written numerous

publications for Human Resources professionals, including

Overtime Revisited: The DOL’s Final Regulations

and

How to Fire

Employees Without Getting Burned.

She graduated with honors

from the University of Tulsa College of Law, where she was an editor

of the Energy Law Journal.

She also obtained her undergraduate

degree in English,

cum laude,

from the University of Tulsa. Her excellent

legal and editorial skills have made her one of the most popular authors

of M. Lee Smith Publishers LLC resources.

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