In the lull between Open Enrollment and next year's plan renewals, it is reasonable to look at some compliance issues, specifically COBRA notice procedures. A recent court case found an employer's COBRA notice mailing procedures to be insufficient. This created significant liability for the employer.
This case also provides useful reminders for all employers regarding COBRA notice requirements. Give it a read and think about whether your procedures would stand the test. Or if you are pressed for time, jump to the Lesson at the end of the article.
COBRA Notification Requirements
COBRA law requires employers to provide a formal notification of COBRA election rights notice to Qualified Beneficiaries. When a qualifying event occurs (such as termination of employment), the following employer notice responsibilities are triggered. There are also specific time thresholds that must be met for notifications.
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Days after Qualifying Event Occurs
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Employer notifies Plan Administrator
The employer must notify its group health plan administrator when a qualifying event occurs
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30 days
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44 days combined*
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Plan Administrator notifies Qualified Beneficiary
The plan administrator then must notify the employee of his or her right to continue coverage under COBRA.
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14 days
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*When the employer and Plan Administrator are the same entity, both day allocations are allowed (44 days total).
Proof of Notice
The courts generally recognize that a "good faith" effort to send an election notice to an employee satisfies an employer's COBRA notice requirements. However, the burden of proof lies with employers to demonstrate that this good faith effort was made.
Over the course of decades of lawsuits, two general methods of notification have emerged as satisfactory for meeting an employer's COBRA notification obligation:
- By documenting the sending of required notices via first-class mail.
- By a plan administrator adopting standard procedures for generating and mailing COBRA notices and maintaining evidence that the procedures are consistently followed for a specific individual.
As an example of the standardized procedure method, if mail merge letters are the standard procedure, documentation would need to be maintained of the Excel spreadsheet that fed the mail merge process. Upon challenge, the specific individual's information would need to be identified in the mail merge file.
Facts of the Jewel Case
An Illinois federal district court concluded that an employer failed to show it made a good faith effort to provide a COBRA election notice to a terminated employee. (Link to Earl v. Jewel Food Stores, Inc. case.)
In this case, the employee was terminated for violating the employer's attendance policy. The employer asserted that it mailed a COBRA election notice to the employee. However, the employee did not receive the notice.
Both the employer and employee agreed that the employee's termination of employment was a COBRA qualifying event, and that the employee did not receive a COBRA notice from the employer. Thus, the question before the court was whether the employer made a good-faith effort to provide a COBRA election notice to the employee.
The Ruling
To show its good faith efforts, the employer-provided:
- The COBRA notice itself, which was addressed to the employee's home address, and
- A Certificate of Mailing which was an internal document stating that a "Qualifying Event Letter" may have been sent to the employee at his last known address.
Based on this evidence, the court determined that the employer had failed to show that it made a good faith effort to provide the employee with a COBRA election notice. According to the court, the employer provided no evidence of:
- Sending the COBRA notice by certified or first-class mail
- Documentation of the employer's standard procedures for generating or mailing COBRA notices
- Documentation of whether the employer's COBRA mailing procedures were followed for this employee.
The court also rejected the employer's argument that even if the employee had received the COBRA notice, he did not need COBRA and could not have afforded to pay for COBRA coverage.
The Lesson
The takeaway from this lawsuit is the importance of maintaining both defined procedures and procedural integrity relative to required COBRA notifications. Look at your procedures and confirm the following:
If Handled Internally: What is your process for sending notifications? How well is the process documented? Could you produce documentation showing that you followed the process for a specific Qualified Beneficiary?
If Outsourced to COBRA Administrator: What is your process for providing data on Qualifying Events (or Initial Notices) to your COBRA administrator? Does your administrator have a documented process for mailing notifications? Could your administrator produce documentation showing they followed the process for a specific Qualified Beneficiary?
Vita's COBRA Administration Process
The Vita COBRA administration process checks all the required boxes in terms of following a defined process and retaining documentation on the notification sent for each Qualified Beneficiary.
