Question about adding dependent to COBRA coverage

[Guest Ozzie]

John terminates from employment. He and and his wife Jane enroll in COBRA. Jane is having children with a man other than John, (they are still married - for now) can she add the children onto the policy?

My thought is that since Jane is covered under COBRA, then those children can be added to the policy however, they will not be treated as qualified beneficiaries since they are not children of the covered employee. If John and Jane get a divorce after the children are born, since the children are not qb's, would they be entitled to the 36 months of coverage that Jane would be entitled to?

[jsb]

How would you not add the child? I think there would be a presumption that the newborn child of a spouse is the employee's child. It may be a rebuttable presumption, but that is for the lawyers to deal with.

What is the problem with making the new child a QB? I don't recall anything in the regs that requires the former employee to be the bio parent in order for a newborn child to be a QB. The mother could have been considered a QB in her own right, in which case the child would be a QB.

You may know the behind-the-scenes facts this case but you certainly don't want to become the genetic police on every child born to one of your plan participants. The possible nightmares are endless.

[Kirk Maldonado]

(1) Qualified beneficiary.

(A) In general. The term “qualified beneficiary” means, with respect to a covered employee under a group health plan, any other individual who, on the day before the qualifying event for that employee, is a beneficiary under the plan—

(i) as the spouse of the covered employee, or

(ii) as the dependent child of the employee.

Such term shall also include a child who is born to or placed for adoption with the covered employee during the period of continuation coverage under this section.

IRC Section 4980B(g)(1).