In the recently decided case of Dorsey v. Holman, 2010 U.S. Dist. LEXIS 41295 (D.D.C. Apr. 27, 2010) a Washington D.C. law firm terminated their employee, Debra Dorsey, after a year of disability-related leave. The employee elected COBRA in late 2008. Subsequently, the American Recovery and Reinvestment Act of 2008 (ARRA) was passed in February, 2009, and the employee made the request to her employer to be provided the subsidy following a conversation with a DOL official who confirmed her eligibility for the subsidy. The employer denied the request. It viewed the termination as voluntary because the employee failed to return after her FMLA leave expired. Even after a DOL representative called the employer and stated that the COBRA premium should be subsidized, the employer again denied the request.

U.S. District Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia dismissed the case, ruling that ARRA states that its COBRA-related provisions should be treated as though they are part of the Employee Retirement Income Security Act (ERISA). Collyer pointed out that the DOL has provided guidance on its web site and directs individuals denied the COBRA subsidy to complete an “Application for Review of Denial of COBRA Premium Reduction.” The DOL advises that the department will act on any application within 15 days of getting the document. It is significant to note that Debra Dorsey did not follow this process and instead sued her former employer. The conversations with DOL officials did not follow the DOL’s expedited review process. The court held that the DOL’s review process is required before a Qualified Beneficiary can sue over an ARRA subsidy denial.

COBRA Model Notices

ARRA, as amended by the Continuing Extension Act of 2010 (CEA), mandates that plans notify certain current and former participants and beneficiaries about the COBRA premium reduction.

The Department of Labor has created model notices to help plans and employers comply with these requirements. Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy ARRA’s notice provisions, including those amended by CEA.

Model Updated General Notice

Plans subject to the Federal COBRA provisions must provide the updated General Notice to all qualified beneficiaries (not just covered employees) who experienced a qualifying event at any time from September 1, 2008 through May 31, 2010, regardless of the type of qualifying event, and who have not yet been provided an election notice. This model notice includes updated information on the premium reduction, as well as information required in a COBRA election notice.

Note: Individuals who experienced a qualifying event that was a termination of employment from April 1, 2010 through April 14, 2010 may not have been provided proper notice. Those individuals who have not been provided any notice must get the updated General Notice and receive the full 60 days from the date the updated notice is provided to make a COBRA election. Those individuals who have been provided a notice that did not include information related to the most recent extension must also be provided this updated information. Depending on the specific circumstances, either the Supplemental Information Notice or the Notice of Extended Election Period may be used. See below for additional details.

Model Notice of New Election Period

Plans subject to continuation coverage provisions under Federal or State law should provide, within 60 days of the date of the termination of employment, a Notice of New Election Period to all individuals who:

• experienced a qualifying event that was a reduction in hours at any time from September 1, 2008 through May 31, 2010;
• subsequently experience a termination of employment at any point from March 2, 2010 through May 31, 2010; and
• either did not elect continuation coverage when it was first offered or elected but subsequently discontinued the coverage.

Generally, individuals who have experienced a qualifying event that consists of a reduction of hours and who, from March 2, 2010 through May 31, 2010, experience an involuntary termination of employment must be provided this notice within 60 days of the event. Additionally, CEA provides that for the April 1, 2010 through April 14, 2010 period, the notice requirement attaches to any termination of employment. The Department strongly recommends that notice be provided to individuals who experienced any termination of employment because employers may be subject to civil penalties if it is later determined that the termination was involuntary and notice was not provided.

Model Supplemental Information Notice

Plans that are subject to continuation coverage provisions under Federal or State law should provide the Supplemental Information Notice to all individuals who elected and maintained continuation coverage based on the following qualifying events:

• all qualifying events related to a termination of employment that occurred from March 1, 2010 through April 14, 2010 for which notice of the availability of the premium reduction available under ARRA was not given; or
• reductions of hours that occurred during the period from September 1, 2008 through May 31, 2010 which were followed by a termination of the employee’s employment that occurred on or after March 2, 2010 and by May 31, 2010.

For the first item above, plans must provide this notice to all individuals with a qualifying event related to any termination of employment if they have not already been provided notice of their rights under ARRA. This notice must be provided before the end of the required time period for providing a COBRA election notice. For the second item above, generally, individuals who experience an involuntary termination of employment from March 2, 2010 through May 31, 2010 after experiencing a qualifying event that consists of a reduction of hours must be provided this notice within 60 days of the termination of employment. However, as noted above, CEA requires plans to provide notices to all individuals with qualifying events related to any termination of employment that occurred from April 1, 2010 through April 14, 2010. In those cases, this notice must be provided before the end of the required time period for providing a COBRA election notice. Because employers may be subject to civil penalties if it is later determined that the termination was involuntary, the Department strongly recommends that notice be provided to individuals who experienced any termination of employment.

Model Notice of Extended Election Period

Plans that are subject to continuation coverage provisions under Federal or State law must provide, before the end of the required time period for providing a COBRA election notice, the Notice of Extended Election Period to all individuals who:

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  • experienced a qualifying event that was a termination of employment at some time from April 1, 2010 through April 14, 2010;
  • were provided notice that did not inform them of their rights under ARRA, as amended by CEA; and
  • either chose not to elect COBRA continuation coverage at that time or elected COBRA but subsequently discontinued that coverage.

Model Updated Alternative Notice Insurance issuers that offer group health insurance coverage that is subject to comparable continuation coverage requirements imposed by State law must provide the Alternative Notice to all qualified beneficiaries, not just covered employees, who have experienced a qualifying event through May 31, 2010. However, because continuation coverage requirements vary among States, this notice should be further modified to reflect the requirements of the applicable State law. Issuers of group health insurance coverage subject to this notice requirement should feel free to use the model Alternative Notice, the model Notice of New Election Period, the model Supplemental Information Notice, the model Notice of Extended Election Period, or the model General Notice (as appropriate).   

 To obtain a copy of these notices, please go to:

http://www.dol.gov/ebsa/COBRAmodelnotice.html

President Obama last night (April 15) signed the Continuing Extension Act of 2010 (HR 4581).  This bill contains two basic provisions applicable to COBRA and the ARRA (the full text applicable to COBRA is copied below for your review).

1.       The last QE Date eligible now for treatment as an AEI is May 31, 2010.

2.       All QBs whose QE Date was on or after April 1, 2010 who have not received an SR which included the ARRA information should receive an updated SR and a new 60-day election window from the date of the new SR.