Is a posthumously conceived child covered?

[Peter Gulia]

The attached court decision is about whether a child conveived after her biological father's death is his child.

Although that decision is about Social Security benefits, one wonders whether health plans face similar or related questions. If so, does a plan document provide a useful definition about who is or was a participant's child? If not (or if the definition is ambiguous or incomplete), what steps does a plan's administrator take in using its discretion to interpret the plan? If the plan provides its benefit through a health insurance contract, does the employer punt these questions to the insurer? If the plan is "self-insured", does the employer check whether the stop-loss insurer would agree with the administrator's interpretation?

Let's get the observations of the message board's readers and writers so that we can learn from one another.

Beeler8thCir.pdf

[leevena]

I hate to be the first to speak up...usually I am wrong, but I do not see this being a problem for a group health plan.

This case was concerned with a dependent wanting to receive survivor benefits, which were denied because their needed to be a "inheritance" right. But under the "dependent" definition of a group health plan all that needs to be satisfied is that the child/dependent is from the mother. So, did I miss something? Feel like this is 8th grade and I walked into a pop quiz.LOL

[GMK]

... but I do not see this being a problem for a group health plan.

That was my first take.

Are we talking COBRA, or maybe some other kind of employer-sponsored family health coverage continuation following the death of an employee?

[Peter Gulia]

Yes, COBRA (or some other continuation right) is among the possibilities that I'm wondering about.

[masteff]

With respect to COBRA:

Code Sec 4980B(g)(1)(A) (emphasis added):

"(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."

Reg Sec 54.4980B-5 Q&A-1:

"(b) In the case of a qualified beneficiary who is a child born to or placed for adoption with a covered employee during a period of COBRA continuation coverage, the child is generally entitled to elect immediately to have the same coverage that dependent children of active employees receive under the benefit packages under which the covered employee has coverage at the time of the birth or placement for adoption. Such a child would be entitled to elect coverage different from that elected by the covered employee during the next available open enrollment period under the plan. See Q&A-4 of this section."

NOTE: I'm not sure how one applies this w/ respect to the loss of coverage, qualifying event and notice requirements.

A newborn can also gain coverage if the mother elected COBRA coverage since the mother is permitted to add the newborn under Reg Sec 54.4980B-5 Q&A-5. A newborn w/ a father other than the employee could be covered but would not be a "qualified beneficiary" (per Reg Sec 54.4980B-3 Q&A-1(b) ).

Edit: fixed typo, the reg sec starts w/ 54.4980B and not 51.4980B

[leevena]

I was right...I was wrong!

COBRA is relatively simply because it is a "pass-along" concept. When the loss of coverage occurs those dependents currently covered will be offered continuation coverage. In this situation the child was not yet born, so he/she could not be defined as a dependent. If the spouse is a dependent she could elect continuation of coverage. Once covered, if the spouse has a child, then the child is covered under the contract.