Do Special Enrollment Rights Apply to a Retired Employee?

[rocknrolls2]

Company X provides medical benefits to its active and certain retired employees. Company X is changing its post-retirement medical plan so that if a retired employee who is eligible for such coverage declines to enroll in it, s/he will be forever barred from electing into such coverage. In addition, it is intended that such retired employee cannot get back into the plan through the occurrence of an event that would be a change in status for active employees under its cafeteria plan or that would entitle the retired employee to elect back in through HIPAA special enrollment rights. The only concern is whether HIPAA's special enrollment rights rules apply to retired employees. The Code and ERISA refer simply to "employee" while IRS regs at 54.9801-6 refer to a "current employee." There is nothing in the preamble to the regs which clarifies this.

Any thoughts?