COBRA & MSP & ESRD

[Guest PBJ]

Employee terminates service in March 2006, and elects COBRA coverage. The Social Security Administration sends a letter explaining that because of his end stage renal disease he is entitled to Medicare beginning April 2006. He is going along on COBRA until September 2007 when the 18 month period lapses. He provided no other notices to the plan adminer or employer. He claims he should have COBRA for a total of 36 months because of his ESRD.

I am having a hard time figuring out what is required here. Is he actually entitled to COBRA for 30 months (under the Medicare Secondary Payer Act) or can COBRA terminate at the 18 month mark? Or is COBRA extended for 29 months under the disability extension? Essentially, what is required because he has ESRD?

The employer knew he had ESRD so does that automatically extend COBRA beyond the original 18 months to 30 months?

Any thoughts would be appreciated!

Thank you.

[oriecat]

Did he actually enroll in Medicare? Was he enrolled in Medicare prior to electing COBRA?

If he was not enrolled in Medicare prior to electing COBRA, his Medicare entitlement and enrollment would be an allowable reason for the COBRA to be terminated. So under the facts as you put them, I am thinking he shouldn't have had any months on COBRA.

He definitely would not have 36 months, all of the 36 month qualifying events apply only to dependents.

Edit to add: I am wondering if you can expound any on the MSP provision you talked about, because I am not familiar with it at all, and I don't understand how it could add time that isn't listed in the COBRA regs themselves.

[Guest PBJ]

I believe he enrolled in Medicare in April 2006 which ended up being 2 weeks after he signed up for COBRA.

With regard to the Medicare Secondary Payer Act, I agree that the MSP should not add time to a COBRA period if it is not part of the COBRA regs. There is case law that agrees, however CMS seems to say otherwise. So it gets kind of sticky, in my mind at least, where the MSP says that there is a coordination period of 30 months for people with ESRD regardless of the person's employment status. The group health plan will pay primary for 30 months then Medicare will pay primary.

For example, if this person was an active employee and eligible for Medicare because of ESRD, then the employer's plan will pay primary for 30 months and Medicare pays second. After 30 months, Medicare pays primary and Employer plan pays second. But how does this work with the "regardless of the person's employment status? It must mean COBRA. It seems that if COBRA is elected, the employer's plan pays primary for the COBRA coverage (18 or 29 months as applicable) and Medicare pays second. But neither one of those fits the 30-month rule for coordination. I am concerned that somehow the MSP is extends COBRA to 30 months in cases of ESRD.