A Service of OnQue Technologies, Inc.
You May Need To Offer Conversion Coverage When COBRA Ends Do you know your legal obligations?
October 22, 2003
Santa Rosa, CA
Although federal law does not require it, most group health plans offer participants coverage under an
individual insurance policy when group health plan benefits are lost. (Many states require employers to
include a conversion option in their group health plans.) Under federal COBRA rules, employers that do
offer an individual conversion option to active employees must make that option available to COBRA
qualified beneficiaries as well. This COBRA Tip will explain your obligations regarding conversion
coverage for COBRA recipients.|
Who must be offered conversion
rights? Not every COBRA beneficiary must be offered the opportunity to convert from continuation
coverage under the group plan to an individual policy. The 1999 final COBRA regulations provide that
the right to convert to an individual health insurance policy applies only to those qualified
beneficiaries who have exhausted their maximum COBRA coverage periods. Therefore, beneficiaries
whose COBRA coverage terminates early are not eligible to convert to individual coverage under the
plan. Early COBRA termination may be the result of nonpayment of premiums, cancellation of the entire
group health plan, or a qualified beneficiary acquiring other health insurance, such as coverage under
a new employer's health plan.
Conversion coverage option:
Under the 1999 final COBRA regulations, if conversion coverage is available under your plan to active
employees, you must provide COBRA qualified beneficiaries the option of enrolling under the conversion
health plan. This offer must be made during the 180-day period that ends on the date on which the
beneficiary's maximum COBRA coverage will expire. Note that current COBRA rules do not include an
actual notice requirement, only that you provide qualified beneficiaries "the option of enrolling
under a conversion health plan if one is available." It is possible that information contained in
your Summary Plan Description would be considered a legally sufficient offer of conversion coverage.
But we strongly recommend that written notice of conversion options be provided to all qualified
beneficiaries within 180 days of the expected end of their maximum COBRA coverage period.
New COBRA election notice:
In addition to the requirement that conversion coverage, if available, be offered within 180 d
ays of the end of the maximum COBRA period, the newly proposed COBRA rules require that COBRA
election notices provide qualified beneficiaries with information regarding the opportunity to
elect other health coverage. Other coverage may be either an alternative to continuation coverage,
or in addition to it. Examples of other coverage that may be available are: alternative coverage
under the group plan such as disability coverage; individual coverage under a conversion health
plan after all COBRA coverage is exhausted; or retiree health coverage.
Note: Many states have laws that mandate different, and more stringent, notice requirements. For example,
in California, employers must provide accurate notification of the availability of conversion coverage, its
terms and conditions, within 15 days of termination of group coverage; Wisconsin requires notice to be given
within 5 days of loss of group coverage.
The proposed COBRA rules also require that you provide in the election notice an explanation of how election
of other coverage would affect continuation coverage rights and the right to guaranteed access under the Health
Insurance Portability and Accountability Act (HIPAA) for all qualified beneficiaries. For example, once a
qualified beneficiary chooses coverage under an individual conversion policy, he is no longer eligible to
enroll in another individual policy free of pre-existing condition limitations.
HIPAA right of portability:
Under the Health Insurance Portability and Accountability Act (HIPAA), some people may be eligible to buy
individual health insurance policies without being subject to exclusions for pre-existing medical conditions.
To be eligible for HIPAA protection, individuals must have had coverage under a group health plan, including
COBRA continuation coverage, without a break in coverage of more than 62 days. If there is a "significant break in
coverage" of 63 days or longer, HIPAA protections are lost. (Although, some state laws allow a break in coverage of more than 62
days before pre-existing condition exclusions kick in.) In the case of COBRA beneficiaries, all coverage
under COBRA must be exhausted before being eligible for guaranteed access to individual health coverage
The right to purchase individual health insurance coverage with no pre-existing medical
condition exclusions is known as "portability." But HIPAA portability applies only when:
HIPAA does not provide portability rights when a
person has individual health insurance coverage and moves to other individual coverage.
- An employee leaves a job with group
health plan coverage and moves to another job with group health plan coverage;
- An employee loses groups health plan coverage and wants
to purchase individual health insurance coverage; and
- A person has coverage under an individual
health insurance policy and enrolls in a new group health plan.
ERISA preemption of state laws:
Although courts disagree, most jurisdictions have ruled that state insurance laws, not federal laws such as
COBRA and HIPAA, govern the terms and conditions of conversion policies. For example, in 2001, the Ninth Circuit
Court of Appeals ruled that claims against an insurer for reimbursement of medical expenses under an individual
conversion policy were regulated by state law and not preempted by ERISA. The appellate court reasoned that once
the insured has converted from a group policy under an ERISA plan to an individual policy, the individual policy
is not regulated by ERISA, but by state insurance laws. But it is federal law that requires you to offer individual
conversion policies to COBRA beneficiaries when group plan coverage ends if they are made available under your
plan to active employees. If a qualified beneficiary is not offered the right to choose an available conversion
policy, the enforcement of that right is under federal ERISA law, not state insurance laws.
Summary: Important federal COBRA rules to remember regarding conversion
You are not required by federal law to make conversion policies available.
But, if you do make conversion policies available to active employees when they lose group coverage,
you must make the same policies available to COBRA qualified beneficiaries.
Federal COBRA regulations require you to offer qualified beneficiaries the right to enroll in a conversion health
plan at the end of their maximum COBRA coverage period.
You must provide qualified beneficiaries with the option of enrolling in a conversion health plan during the180-day
period that ends on the COBRA expiration date.
Under the newly proposed Department of Labor COBRA regulations, if a conversion option is available at the end of
COBRA coverage, your election notices must:
- Describe the available options;
- Explain how election of conversion coverage
would affect continuation coverage rights of all qualified beneficiaries;
- Discuss the rights to guaranteed access
to individual health coverage; and
- Contain a statement that more complete
information regarding coverage rights is available in your Summary Plan Description or from the
How COBRA OnQue Software Handles These Issues:
Within 60 days prior to the expiration of COBRA coverage, COBRA OnQue automatically generates a notice informing qualified beneficiaries of the option to
enroll in a conversion health policy, if available.
This notice also summarizes qualified beneficiaries' rights under HIPAA.
COBRA OnQue provides an election notice that conforms to the requirements of the newly
proposed COBRA rules.
California's New Conversion Policy Requirements
| This information is provided by
OnQue Technologies, Inc. for educational purposes only and does not constitute
legal advice. If legal advice or other professional assistance is required, the
services of a competent professional should be sought.
Click here to view past
Copyright © 2003 OnQue Technologies, Inc. All Rights Reserved.