KIP KRAUS

Oriecat You have made some excellent points. However, I don’t see how routine office visits can be considered incapacity related to prenatal care. As to occasional morning sickness, I have come to understand that a person must be incapacitated for a period of at least 3 consecutive days in order for such incapacitation to be considered FMLA. Unless a woman is determined to be incapacitated by her doctor during her pregnancy I think there is no FMLA issue.

How does one have a hardship related to the purchase of a primary residence when in fact that person already owns a primary residence? I’m not sure that the willingness on the participant’s part to except the 6-month suspension of contributions is all that is required for a hardship withdrawal. I’m also not sure that hardship withdrawals are intended to have a person become a real estate magnate, or to go into any kind of business. In my opinion there is no hardship in the case of your employee.

I don’t know what DOL Technical Release you are referring to. However, it has always been my understanding that if self-insured dental benefits are paid from employee contributions and general assists of the employer there are no trust requirements, especially if the total cost of the benefits exceeds employee contributions, which in most plans I’ve seen is the case. Typically these plans are money in and money out except for maybe the first year of the plan due to claim lag. In other words, employee monies are not typically sitting around waiting to be used to pay benefits. On the other hand I have seen multiple employer self-insured union medical and dental plans that set up trust funds for the contributions of the participating employers.

I give up. What is a GVUL Plan?

By portability I assume you mean a conversion policy. I know of no insured or self-insured dental plan that allows conversion to an individual poliicy. Even if Oregon had a conversion requirement it typically wouldn't apply to a self-insured plan. If on the other hand you are concerned that Oregon has continuation rules more favorable than COBRA I would check with the state insurance department.

You haven’t said what the qualified benefit is. If the benefit is one that is developing a large reserve it may be one that could look at an alternative financial arrangement that would reduce the actual premiums being charged by the insurer. Alternatively, the client could market the plan and find a better financial arrangement.

Provided you can prove that your boss has complied with all of the election and payment provisions of enrolling for COBRA I would contact the US Department Of Labor immediately. If the employer is playing games thay can correct that immediately.

DevfoFan You’re talking about 3 weeks or so that they will want returned? Why push the issue at the risk of not being rehired for 3 weeks of pay? If you received your lump sum payment in January you wont be taxed on it until the end of the 2003 tax year so have them spread the pay back repayments over your paychecks for the remainder of the year by adjusting your pay. That will take care of the tax adjustment. Just make sure they agree in writing to adjust your pay back to what it should be after the pay back is done. Personally, a job in hand these days is worth the minor hassle.

DevoFan Does your former employer have a written severance plan set up by a plan document and Summary Plan Description? If so, these provisions should be in writing in both documents. If not. Did you sign a waiver and release document when you were laid off? If so, these provisions should be in the document. In any event, as Mary C says this is common practice. Also keep in mind that severance pay is not intended to be a windfall. If nothing was in writing regarding the paying back of unused severance upon rehire, you may or may not have a legal issue. You may want contact an attorney if this is the case

If the COBRA premiums are being paid to the employer then it is the employer’s responsibility to notify the insurer and see that the COBRA participant is enrolled. In my experience, in the normal course of events it shouldn’t take longer than 5 to 7 business days to get enrolled provided all of the necessary paperwork is completed properly and forwarded to the insurer. In some cases it can be done in 1 day depending on the efficiency of the employer and insurer. As to the second part of your query, some insurers will automatically send EOBs to the employee’s address during a period when the dependents are covered as dependents of an active employee. If you are enrolled properly as the COBRA participant and premium payer the EOBs should go to you. The ex-spouse shouldn’t be involved at all. You should contact the employer and the insurer and let them know of your concerns. Between the two of them you should be able straighten this out.

While I agree with mroberts that in some cases employees who work outside NYS are not required to be covered for NYS DBL there are some caveats in the law. In Article 9, Section 201 C. of the Workers’ Compensation Law the definition of employment with regard to employees covered says the following: The term “employment” includes an employee’s entire service performed both within and without the state provided it is not localized in any state but some of the service is performed in the state, and (1) the employee’s base of operation is within this state; or (2) if there is no base of operations in any state in which some part of the service is performed, the place from which such service is directed or controlled is in this state; or (3) if the base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, and the employee’s residence is in this state. I’m not sure just how this is interpreted, but it is in the law.

Christine: I agree with Kirk. Typically vacation is earned or granted sometimes on a person’s employment date. Never has constructive receipt been an issue in my experience, and vacation time is taxed when used so why it would ever be considered constructive receipt? I can’t imagine. Even if vacation can be redeemed for cash I would say it is taxable income at that the time it is paid out. In fact many employers have a policy of paying out accrued vacation time at an employee’s termination and this policy is not considered constructive receipt. In addition, some employers allow employees to cash out a certain amount of accrued vacation at the end of their fiscal or calendar year. This policy is also not considered constructive receipt.

It is my understanding that any LTD benefits paid during the first 6 months of a total disability are subject to FICA witholding. After the 6 months they do not apply. Therefore if the LTD plan has a 6 month waiting period before payments begin then FICA wouldn't apply. However, if benefits begin say after 3 months of disability then FICA would apply for the next 3 months of payments. Your LTD insurer can confirm this.

IRC Section 79 has an exception to the imputed income for an employee who is disabled here it is. Exceptions Subsection (a) shall not apply to - (1) the cost of group-term life insurance on the life of an individual which is provided under a policy carried directly or indirectly by an employer after such individual has terminated his employment with such employer and is disabled (within the meaning of section 72(m)(7)), If the person meets the definition of disability in 72(M)(7) then there is no imputed income.

Have you found an insurance company who is willing to write domestic partners? I would think that state insurance laws may prohibit such coverage.

Typically continuation of medical coverage under a group health plan is a state mandated coverage required of fully insured medical plans. The insurer will have a definition of what is determined to be total disability for purposes of continuing medical coverage. In addition, in the provisions I recall seeing coverage is only continued for the condition related to the total disability. I’m not aware of any requirement to have this provision in a self-insured plan of any size.

I was not aware that employees could pay for individual insurance policies on a pre-tax payroll deduction basis.

I would treat it that way. Under a true disability waiver of premium the insurer is waiving the premium payments. The employer is not paying the premiums on behalf of the disabled employee. The employer may have a load in its group rates for this waiver, but they pay this for all employees.

I find it very hard to understand why an insurer would want to cover stepchildren who don’t reside with your employee. Even if a court order exists that requires your employee to be partially responsible for her husband’s children that do not reside with her an insurer should and in most cases disallow coverage. I would get on the phone and discus this thoroughly with the insurer and provide them with all of the details. Even though your contract may not specifically mention that the stepchildren must reside with the insured the insurer may administer it that way. Unless you, as the contract holder have leeway to define who is covered as a dependent I find it hard to believe that an insurer would have this as a standard contract provision unless of course it is mandated in the state where the contract is issued. Court orders cannot require an employer or an insurer to provide benefits to a person that normally wouldn’t be eligible for coverage under the plan.

What is the exact definition of working 30 or more hours per week in your group contract? If it reads something like “regularly scheduled to work 30 or more hours per week” it could be argued that even though she doesn’t get the full 30 hours per week due to sickness, appointments, etc. she is still scheduled to work at least 30 hours per week. Any employee could fall short of the 30 hours per week due to unforeseen circumstances and their cover doesn’t end. If the situation doesn’t improve you may have to threaten her with termination. Sometimes this can shock an employee into reality. As to charging her more for her portion of the premiums I’d stay clear of this one unless you establish this in writing so that it applies to any employee similarly situated. The issue of vacation and other benefits not related to medical coverage is a separate issue and can usually be determined by the company differently than eligibility for insured benefits.

Typically if you have any insured welfare benefits commissions are likely paid directly by the insurer to the broker/insurance agent. Commissions paid should be shown on the Schedule A submitted by the insurer. These commissions are reported on the Schedule A. If your employer is paying commission/fees outside of the insurance contracts it is my opinion that you do not show these payments on your Schedule a.

Does your plan say that the stepchildren must be residing with the employee? I find it odd that the plan would not have residency requirements for stepchildren. Most fully insured contracts I’ve seen have a legal adoption or a residency requirement. I have also never seen a court order that made the spouse of a person with children from a previous marriage responsible for such children unless they were residing with the new spouse, or legally adopted by the new spouse. That of course doesn’t mean that a court wouldn’t take such action. However, if the employee cannot provide proof of the court order I wouldn’t allow the coverage. Check it out thoroughly.

If these children do not live with your employee I'd say they are not eligible to enroll in your plan. Check the eligibility provisions of your fully insured contract.

While I agree with all of the advice given so far I would suggest contacting the insurer to find out if the employer’s coverage is in effect. Call the claims number on your ID card. Employers typically pay COBRA premiums along with active employee premiums. If they are late with their payments the insurer will sometimes automatically cut off claims payments until premiums are paid to date. This could be what happened.

I don’t understand why he wants to add COBRA dental if he has dental under his wife’s plan. In any event, I would say his ability to add COBRA dental under your plan has expired. It is my understanding that once you deny COBRA coverage you can’t pick it up later regardless of any event.