failure to send out Cobra paperwork

FHR

I posted this question in the general law site without much response so I'll try here.
What are the consequences of not sending COBRA paperwork out on time, very late or not at all?.
My former company is very late with the paperwork. They have cancelled my insurance though so I am stuck in limbo. I have sent a couple of emails with no response.
I was the HR rep for my company but I was always very timely with COBRA paperwork so I don't know what the company needs to do or what options I have.
Any help?

Roberta

My understanding is that until you receive your COBRA election form you should be considered as a participant. This is something that could get very difficult to pursue however. Any claims should be paid as if you were a participant during this period, and you should be allowed to have the 60 day election period from the date of receipt of the notification--not the original event--if the receipt date is longer than 30 days after the event. The point of this is to prevent employers from "forgetting" to send COBRA paperwork to QBs. In the absence of forgetfulness/negligence on the part of the company, was your address correct when you left? COBRA paperwork only has to be mailed by regular mail (if not given to you directly) and the postmark date would prevail if the letter is returned to the company as undeliverable.

If you intend to exercise your COBRA rights, use a registered letter. Then you have proof positive that you were trying to do so.

Good luck with this. It doesn't sound pretty.

FHR

My address was definitely updated as I did updates myself and have been living in the same place for awhile now. So am I to understand that if I have to go to the Dr. or emergency room for whatever reason (I have been diagnosed with vertigo) the company is responsible for the bill. My doctor wants to give me an MRI and I can't do it until this is resolved.
Thanks for your help!

Beave

Boy FHR, your life goes from one mess to another - hang in there - it'll get better.

As for your COBRA rights (briefly): your former employer has 14 days from the cancellation date of your health insurance to send you your notification letter. Then, you have 60 days to elect after receiving the notification letter (or 60 days from the cancellation of your insurance - whichever is longer) and another 45 days to pay once/if you elect.

As you probably know, by them not complying with these timeframes, sets them up for hefty fines/penalties and you for possable legal action. Document your attempts to aquire it - this documentation just may come in handy. Good luck.

Roberta

I did a little more research for you and a re-education for myself. According to Fed. Reg. 62 FR 40699 (7-29-97), ERISA violations could be up to $110 per day per violation. If you do the math, that could be a way to "encourage" your former employer to get your election form to you. DOL takes a dim view of an employer failing to provide employees COBRA benefits--how would they deal with an audit? and possible fines?

Your situation is exactly what COBRA is supposed to help.

Department of Labor phone number: (202) 219-8776 according to my sourcebook

FHR

Roberta, thanks for the info.
I did call the number that you posted. The individual that I talked to told me that employers have 44 days to inform me of my COBRA rights.x:-/ This inconsistent with what I remember and what is on the website. He also told me that there are no fines or other motivating factors to assure that ex er's send the notifications out in a timely manner.
I know that the new HR person is not doing any HR administration. Her only focus is recruiting and payroll. There are others that have been terminated that have not recieved COBRA, one of whom has a heart condition.
We are in a bit of a pickle here. Anywhere else I can go?
Thanks.

lnelson

How it reads is the er has 30 days to notify the plan administrators of the qualifying event then the plan admin. has 14 days after notification to send enrollment docs to qualified ee. This totals 44 days.

As far as penalties for non-compliance I did not see any.

Check out this website: [url]www.dol.gov/ebsa/pdf/cobrareg-hamburger.pdf[/url]

Good Luck!
Lisa

irenesmsaclaims

There is a statutory penalty for late COBRA notices to former employees of $110 per day (after the 14 or 30 [44] days as previously posted). However, there have been court decisions denying the penalty if the former employee is not harmed (doesn't elect, or has no gap in coverage), or the employer acted in bad faith.

The penalty provision of ERISA leaves it to the court's discretion to determine whether penalties are appropriate for a failure to notify. It is not necessary to find that the employer acted in bad faith or that the employee was harmed for an ERISA penalty to be assessed, but the court may consider these factors in exercising its discretion.

Beave

"How it reads is the er has 30 days to notify the plan administrators of the qualifying event then the plan admin. has 14 days after notification to send enrollment docs to qualified ee. This totals 44 days."

I may be wrong but I think if you look into it, you will find that the 30 days applies only if you don't do the COBRA administration duties in-house. Ohterwise, you have 14 days to send out the notice.

Good luck.

KathiHR

I'll just jump in here as being on the other side - the employer who failed to send a timely COBRA notice (extinuating circumstances - long story). Anyway, our ex-employee contacted the federal DOL, not the state. I received a personal phone call from a "COBRA enforcer" (ok...not their formal title) wanting an explanantion for my failure to provide timely notification. I was also threatened with a hefty fine, even though I was doing everything I could & the problem was at the insurance company's end.

So here's my suggestions:
1) Contact the federal DOL because somebody from there sure decided to call me.
2) Get medical treatment as if you are covered.
3) Remember that once you get your COBRA election notice, you will be covered back to the qualifying event, but you will also be responsible for back premiums as well. So budget accordingly.
4) As a last resort, contact an employment attorney. If a phone call from the DOL doesn't light a fire under them (it did me!) then maybe a letter from an attorney will.

Good luck!
Kathi