jsb

Interesting ruling, quite old, I hope not superceded by something later. Under this ruling, it appears that it would be OK to reimburse the employee on a tax prefered basis provided the payment by the employer is compliant with one of the 3 payment methods listed. However, I would find it even more perilous to do something like this on the QT with a rank and file member (are you unionized?) who might easily share his "good fortune" with his mates. Although there is generally a lot of inertia in individual benefit choices, no doubt the word will spread and others will want to participate in this exciting new program.

Going back to your original post, you note that the regs permit an election change - "If a plan adds a new benefit package option or other coverage option..., the cafeteria plan may permit eligible employees to revoke their election under the cafeteria plan and , in lieu thereof, to make an election on a prospective basis under the new or improved benefit package option." There is no new or improved benefit package option for your employee to elect. Since the plan has added nothing I think you are out of luck for making an election change this year. I do not know about the broader issue of whether or not the POP can pay a private carrier. I'll leave that to others. But I surmise you are a very small plan to be contemplating this. You set quite a precedent by permitting such a thing which may be OK with 5 employees but impossible to manage with 5,000 employees. And how would you handle potential future POP election changes based on changes in the private insurance marketplace. If I lose my private coverage for whatever reason, what would allow you to change the POP election? I think this is fraught with peril...

I think it is going to depend on how the language in the collective bargaining agreement (CBA) is specifically worded, both under the old contract and the new. "Vesting" and "promised" are terms that I often hear used by participants receiving or hoping to receive a benefit, but which unfortunately does not accurately describe the provisions set forth in a CBA. There are many, many variables and possibilities which I can easily envision permitting the situation you describe. If it was the intent of the parties that this type of change be permitted, it can be done. Try contacting the union to see how they respond to your situation. As a party to the CBA, they should be able to clarify its meaning and intent for you. Good luck.

Think POP portion of the overall cafeteria plan, which can be used to pay the employee's contributions to health insurance on a pre-tax, salary reduction basis. It can pay for any premium that the IRS allows and the employer also permits. I'm not sure why you would use FSA money to pay premiums for coverage through your own employer. FSA money cannot be used to pay the premiums of another health plan, as noted (eg. the health plan premium through a spouse's employer). Though, of course, FSA funds can be used to cover medical expenses not covered by that other plan. I believe the reference to "... may only cover premiums for health plans offered by that employer..." refers to the allowance that you can use your FSA contributions to pay COBRA premiums through your employer's plan for your qualified dependent who no longer meets the plan's eligibility requirement for coverage as your dependent.

No, it does not violate HIPAA to require a doctor's note in the instance you described. Because the note is provided to you by your employee, it is not PHI. This is an employment function that is not subject to HIPAA. However, other privacy or employment laws may apply so good care in handling and protecting the information once you have it is important.

1st, get advice from a good benefits attorney! From a risk management standpoint, you hit the nail on the head regarding potentionally unlimited exposure on claims, which you would want to avoid. I think that until the notice is sent, your clock doesn't start running and you are exposed. Get the letter sent. Red flags? You bet, but you may get lucky and the person never responds and never comes after you. However, if they do want to make you the next failed COBRA compliance test case, your attorney can either defend you or advise settlement. Hopefully your health carrier will work with you and provide the coverage, but don't expect a free ride from them. They don't necessarily have to accept the risk of your mistake. You may need to agree to reimburse claims to them and have them act as your TPA for this one case. If you are a large plan, it will be easier for them to agree, presuming that your plan is mostly rated on its own experience already. If no claims to date and the QB wants to sign up, you may need to consider eating past premiums as a way to settle potential liability. You could hard ball them and try to make them pay, but that might drive them to their own attorney if they don't already have one. Unless your premiums exceed $3,000 per month, paying the back premium will likely be cheaper than the penalties for failing to comply with the notice requirements. Take your medicine, fix your procedure that allowed this notification to be skipped, and move on.

We made the same connection, but fortunately don't yet have a HDHP with a HSA to worry about yet. It seems clear that (so far) Part D and HSAs are not compatible. We're hoping the feds will resolve the conundrum before we move into HSA land.

This is not about pay otherwise you would be trying to be "equal" (I hope). This is about providing health INSURANCE because you believe that it is important for employees and their families to have access to comprehensive, affordable coverage, and to be protected against catastrophic financial loss due to injuries or illness. Paying 70% is a good number. It provides a significant incentive for people who don't need your coverage to not take it, but it also provides a substantial contribution toward the coverage of people who do need and want the coverage. If you pay 100% for individuals, all should take your coverage even if they have other coverage available and don't really need yours. People will act in their own financial best interests. Sharing costs helps keep your and their interests aligned. Is this issue your employee's only foible? I suspect not. Maybe it's time to suggest that this person move on if your company philosophies and policies are not to their liking.

We have taken the stance of seeking to administer our plans up to what is maximally permitted by the law. This avoids any questions about why our policies are more restrictive than the regs would allow, especially when our policy would work to the detriment of our employee, even if it is due to the employee's own bad planning. We hope this will help reduce forfeitures as well as encourage some folks who have been reluctant to join the plan to give it a try.

SKC - Sorry you took my post so badly. Perhaps there is some additional information here that will be useful. So they gave you bad information. And I understand that you are angry about it. But what should be the penalty? How have you been damaged by this other than some unmet hope for a better deal? As a plan administrator, I would try to get you back into the same position you would have been in had no mistake had been made; not better or worse, back to the same. This would mean undoing your cancellation and offering you a chance to continue your COBRA coverage. This is apparently what they have done. But this includes your having to pay the premium that you should have paid...which is also what they are asking you to do. If they are admitting their mistake, perhaps they will let you pick-up the missed payments over a reasonable time period. It seems that you want someone to say you have a great case and should go get a lawyer and sue the bums. But first there must be harm. How have you been harmed by their actions? You didn't get coverage under your partner due to the bad info, which has been corrected. Disappointing that you didn't get the coverage, but not harm. They are offering to set you back up under your own COBRA, which you cancelled, in exchange for the premiums you would have paid anyway. Expensive, but not harm; they are seeking to do the right thing. Sorry, but as I see it, there doesn't appear to be any kind of actionable claim. But then, I'm not an attorney, so perhaps you should go talk to a couple of them in your local area who specialize in this kind of thing. They can tell you for sure if you have any kind of case they can win for you. So what options do you have? 1) Pay the money to have your coverage reinstated. (Maybe try to negotiate the payment of the lump sum over some reasonable time.) 2) Find cheaper coverage and buy that instead. (If you have chronic medical conditions this may not be possible without significant exclusions, but you might be able to get cheaper coverage than a COBRA plan if you are generally healthy. Benefits will likely be different, but you can protect yourself against catastrophic events.) 3) Find out about the employer's open enrollment period and rules so that maybe you can be added to your partner's coverage at that time. Good luck.

It is very unfortunate that you were apparently given bad information. You might go back to them and ask again why you cannot be a "dependent" on your partner's coverage. This does not make you a "qualified beneficiary" under the COBRA laws, just a dependent of the qualified beneficiary. If you could have been covered as a dependent when your partner was working you should be able to be covered now. But, I'm a bit confused by the premium issue. Surely there would be a cost to be added to your partner's coverage; probably just about as much as carrying your own coverage. Which leaves me a bit baffled why the premium amount ($870, which sounds like about 2 months worth of coverage) is causing you such heartburn. Seems you were paying for your own COBRA all along but then stopped in anticipation of this better deal. I gather you did not set this money aside but must have spent it elsewhere, which now creates the problem with the $870 payment. Not very good planning. Generally, voluntary non-payment of premium is not a qualifying event. End of a COBRA qualifying period is. The employer's open enrollment period might offer another opportunity to make a plan change. I would recommend figuring out how to come up with the premium money so you can continue your own COBRA coverage. Once this is back on track, you can safely evaluate your other options.

Troseo, Take 3 deep breaths and relax. For the time being, you have your health insurance coverage and should focus on getting your health back. I hope that your recovery goes well and you are able to return to normal functioning. If you never return to work, will you have a disability retirement through your employer's pension plan, or would you have to rely on social security disability? If you would have to rely on social security disability or other pension, would you be able to afford the full (102%) cost of your employer's COBRA coverage or would you be dropping the coverage anyway? It sounds like your employer is going to continue to keep you covered for now. This is a good thing. My recommendation is to wait and see how they will handle things if you are never able to return to work. Depending on what they do at that time, you may have other options or recourse. Good luck. I hope you make a speedy recovery and everything works out for you.

You didn't indicate which state you are in. Workers' comp laws can vary significantly between states. This could include what the employer's responsibility (under the law) is for maintaining health insurance for you while you are not working due to an on the job injury. Here's the good news! Sounds like your company is treating you right! You're hurt and not working and still have health insurance. You're not paying any more than you did while you working. Be thankful that your company takes its responsibilities to its injured employees to heart. Your company is also (responsibly) protecting itself. Workers' comp claims can go on and on and on, and they need to try to limit their liability. COBRA generally provides for 18 months of continuation coverage. By triggering your COBRA period, they are seeking to limit their liability to the 18 months required by law. Ultimately, the company may provide benefits under their policy or State law for a longer period due to your industrial injury. Some workers' comp claims are not legitimate or get exaggerated. If yours is totally on the up-and-up, I think you can expect your company to treat you right and help you get back to work. So far, it sounds like they are doing all the right things. As above, you should be thankful that you work for a good outfit.

How many retirees? Average monthly contribution? Is contribution flat or indexed to something? Extent of unfunded liabilities? Can you do it? I suppose you can try. But if I'm a retiree with almost any kind of chronic condition, you don't have enough money to buy me out. How will I purchase coverage anywhere else with my condition? If some take you up on the offer and others don't, you'll be left with the sickest of the sick. Not a good formula for an ongoing plan. Why not contribute the money to funding the liability? Or, if it is not a vested right, terminate the program, hopefully in a humane way that gives participants time to make whatever other arrangement they can. (If it is a moral issue for the company to provide the benefits, or some alternative, I applaud you. Far too little integrity left showing in the world today.)

I think these are "voluntary" provisions, so you can pretty much do what you want, up to the maximum permitted by the IRS. Other than the potential cost considerations (which I'll agree might be important) why would you want to do this? You run a pretty significant morale hazard here if you'll let them drop for a good reason, but not come back onto your plan for a similarly good (and IRS permitted) reason. Your employee might be left scrambling for spouse and/or dependent coverage or worrying about the cost and quality of private plan or COBRA (if eligible) coverage. Their attention is diverted from your business by this concern and the time they take to resolve any problems or issues. And then they are ticked off at you for your inhumane policies that devalue them as your employee, so productivity suffers further. A bit extreme, perhaps, but not out of the realm of belief. With over 13,000 primary lives, we seek to enable our employees to have the maximum flexibility permitted under the law. This saves me and my staff the hours it would take to try and explain why our policy is more limiting than the law permits. Oh, we still get our share of appeals when situations fall outside of IRS guidelines, but I no longer deal with any strife caused by our self-inflicted policies. We have many hundreds of qualifying events each year, so the time saved is considerable.

Count: 14,000 Actives 4,500 Retirees (Primary lives) Industry: Local Government Provide benefits to REGISTERED DPs only; as defined by CA statute (Family Code Section 297); same sex partners only unless one of the partners is age 62 or over, then can be opposite sex. Under CA law, must provide same benefits to DPs as we would provide to a spouse.

One could argue that, if there are other different health plan options available, a change could be permitted, if permitted under the plan documents, provided the change is consistent with the event. You indicate that there is an additional plan available to non-union employees. If that plan is materially different than the union offerings, eg. it's a PPO and only HMOs are offered to the union, you could probably justify allowing a change into that plan based on "change in cost or coverage". Allowing enrollment in the PPO would be consistent with the event because a different type of plan is offered to the non-union employees. On the other hand, allowing the employee to switch into another plan type that is already offered to both union and non-union employees, might not be allowed as it would not be consistent. Similarly, if the "different" plan being offered to non-union employees is basically just a different carrier offering the same type of plan with the same covered services at the same cost, it might be more difficult to justify allowing a change.

Kirk, thanks again for your insights and direction on this issue.

Thanks all for the responses. To try and capture the essence of what has been set out so far: 1. There is apparently congressional intent that an employer plan not have to remain primary on ESRD. 2. ESRD (as evidenced by dialysis) can trigger Medicare "eligibility". 3. One cannot force a plan member into Medicare entitlement (eg. become enrolled). 4. The plan could limit benefits for ESRD (beyond the 30 month COB period) to amounts in excess of what should have been paid by primary Medicare. (Notification to the member of any such plan provision highly recommended before taking action.) So back to my original question, can I require a participant with ESRD to enroll in Medicare as a condition to continued coverage under my Plan? A - Only at my great legal peril. However benefits can be reduced for ESRD beyond the 30 month COB period to the extent of payments that should have been made by Medicare as a primary payor, thus providing a significant incentive for my member to secure their Medicare entitlement. Would this be a fair, albeit overly simplified, summary? Thanks again to all.

Kirk, Please provide a cite for your statement that is specific to ESRD. What is illegal about, as a condition of enrollment in my plan, requiring a participant to enroll in Medicare if the participant is eligible and Medicare will pay in the primary position? You are suggesting that it is illegal to require my retirees to enroll in Medicare Part B (and soon, Part D) if they are eligible in order for them to participate in my retiree medical plan offerings which coordinate with Medicare? In spite of their ill conceived position re: the EEOC and Eerie, I think even AARP would suppor that they should be allowed to require Medicare enrollment for retirees to participate in the AARP plans. I would agree that I run afoul of some regulations if I attempt to require my non-ESRD active employees to move into Medicare. Medicare will not pay primary for active employee who are eligible because of age, so in any event there really is no value to the employee or the employer to such a requirement. ESRD, however, is a special case, and Medicare will pay primary even for an active employee after a waiting period.

Does anyone require active employees with ESRD (End-stage Renal Disease) to enroll in Medicare as a condition of continued participation in your active employee health plan? If so, would you be willing to share your plan language? Many thanks.

Who declared you disabled? This is relevant to whether or not you might qualify for the 11 month extension of COBRA. You must be declared disabled for Social Security purposes in order to qualify.

Probably not. COBRA entitles you to 18 months of extension coverage. If the employer switches health carriers, you would go with the new carrier for the balance of your coverage. Be glad they didn't drop all coverage; in that case you would be out notwithstanding the fact that you only had 10 months of coverage. You may not have gotten the card, but you had the coverage. If major medical expenses had been incurred during the 1 month time period when you didn't have the new card, you would have been rightfully insisting on coverage. Some states have laws that may entitle you to further extension of your coverage, though probably not at the same rate. Check with your former employer or health insurance carrier. Good luck.

blb, You may want to define "STD" and "LOA" for us. In benefits, usually STD is a "Short Term Disability" insurance policy which pays salary replacement benefits when you are unable to work due to disability. Such a policy whether insured or self-insured by the employer, would be subject to written eligibility guidelines which you either meet, or do not. You should be able to obtain a copy of the STD plan documents from the employer. However, your post also describes "LOA" more akin to a "Leave Of Absence" employer policy which might define job protection or other employer-granted rights that regulate how employees on various types of leaves are treated. Generally, "STD" and "LOA" are not interchangeable terms. It is hard for me to tell what your situation is. Many nurses are represented by unions. If you are, be sure to check with them regarding your rights. They are your representative; put them to work for you. In California, you would most likely be eligible for UI if you have been terminated from your position and are subsequently able to work. The rules in your state may be different. Good luck and best wishes for a speedy recovery.

Mary C, Do you then provide 18 months (or other appropriate length) of COBRA coverage from the date COBRA coverage begins, or do you count your 18 from the date active coverage ended (noting that the dates are different as you have laid out)? If a break in coverage occurs, what is the effective date of the COBRA coverage - date of election, first day of the month following election, or other? I assume you still wait for payment before putting coverage in place?