COBRA and Medicare (ESRD)

[Guest cjthornton]

When an employee elects COBRA and one month later becomes entitled to Medicare benefits due to ESRD, may the plan terminate the COBRA coverage as provided in the COBRA statute (due to entitlement to Medicare)? I have been told that the plan cannot terminate COBRA coverage because of entitlement to Medicare during the first 18 months of COBRA coverage based on the COBRA statute and HIPAA. CMS could not point me to a specific statute or regulation that stated this limitation. Any help would be appreciated!

[oriecat]

My understanding is that the employee must be entitled and enrolled in Medicare following the COBRA election in order for you to be able to cancel their COBRA coverage due to other coverage. If they only became entitled and didn't actually enroll then no you can't cancel them.

[oriecat]

This information is even on the DOL website FAQ on COBRA.

http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.html

Coverage begins on the date that coverage would otherwise have been lost by reason of a qualifying event and will end at the end of the maximum period.  It may end earlier if:

[snip]

After the COBRA election, a beneficiary becomes entitled to Medicare benefits.  However, if Medicare is obtained prior to COBRA election, COBRA coverage may not be discontinued, even if the other coverage continues after the COBRA election.

What's important to remember is that "entitled" actually means eligible and enrolled.

[Mary C]

Another thing to consider is the entitlement to A or B or both. While entitlement (eligible for and enrolled in) in Part A is sometimes automatic, the beneficiary must actually elect and pay for B. However, COBRA can still be terminated if they are only entitled to Part A and choose not to enroll in Part B.

[Guest cjthornton]

Thanks for the responses. In my situation the qualified beneficiary is actually enrolled in Medicare (although I do not know if he is enrolled in both Part A and Part B). My concern is that what CMS is telling me is in direct contradiction to the language of the COBRA statute and regulations. Reg. Sec. 54-4980B-7, Q&A3 specifically states that a plan may terminate COBRA coverage on the date the qualified beneficiary becomes entitled to Medicare. Once the "entitlement" question is answered, there does not appear to be any limitation to the plan's right to terminate coverage. CMS has told me that if you are within the first 18 months of COBRA coverage a plan cannot terminate COBRA coverage upon entitlement to Medicare despite the language in this reg. The lady at CMS said this limitation is contained in COBRA and HIPAA but she could not give me a cite to a statute or regulation. I plan on writing a letter to CMS in an attempt to get some clarification and authority on this issue. My client would rather not rely on such an assertion by CMS that cannot be backed up by a statute or regulation.

[Sandra Pearce]

You have to look at the dates involved. If the COBRA QB elects (signs) for your COBRA coverage AFTER the date that he is entitled (enrolled) in Medicare, then the QB has the right to continue COBRA coverage for the normal period, 18 months. If the COBRA QB elects (signs) for your COBRA coverage before the date he is entitled (enrolled) in Medicare, then the QB may be cancelled. As someone else mentioned entitlement and enrollment in Part A is automatic and occurs at the beginning of the month that the person turns 65.