COBRA Handbook, 2023 Edition

• 1. Overview
  • COBRA
  • Covered Group Health Plans
  • Covered Employers
  • Eligibility for COBRA Coverage
  • What Is COBRA Coverage?
  • Administration
  • COBRA Premiums
  • COBRA Enforcement, Penalties, and Remedies
  • Multiemployer Group Health Plans
  • Medicare and Its Relationship to COBRA
  • COBRA Issues in Mergers and Acquisitions
  • State Continuation Coverage Laws
  • Coordination of COBRA and Other Health Benefits
• 2. Covered Group Health Plans
  • General Rule
  • "Maintained" by an Employer or Employee Organization
  • Definition of Group Health Plan
  • Number of Group Health Plans
  • Cafeteria Plans and Flexible Spending Accounts
  • Health Reimbursement Arrangements and Health Savings Accounts
  • Employee Assistance Programs
  • Medical Savings Accounts
  • Long-Term Care Plans
  • Executive Physical Examination Plans
  • Health Maintenance Organizations
  • Self-Insured Plans
  • Contributory and Noncontributory Plans
  • Voluntary Employees’ Beneficiary Associations
  • Collectively Bargained Plans
  • Multiemployer Plans
  • Multiple-Employer Welfare Arrangements
• 3. Covered Employers
  • General Rule
  • Who Is the Employer Responsible for Providing COBRA Coverage?
  • Exempt Employers: Small Employers
  • Exempt Employers: Government Employers
  • Exempt Employers: Church Plans
• 4. Eligibility for COBRA Coverage
  • Who Is Eligible for COBRA Coverage?
  • Which Events Trigger COBRA Eligibility?
  • When Is Group Health Plan Coverage Lost?
• 5. What Is COBRA Coverage?
  • The Concept of Continuing Coverage Under COBRA
  • What Level of Benefits Must Be Continued?
  • Rights of Qualified Beneficiaries
  • How Long COBRA Coverage Must Last
  • Termination of COBRA Coverage Prior to the End of the Maximum Coverage Period
  • Coverage During the COBRA Election Period and Premium Payment Grace Period
• 6. Administration
  • Required COBRA Notices
  • Content of COBRA Notices
  • When a Qualifying Event Occurs: Who Must Notify Whom?
  • Providing COBRA Notices
  • Receipt of COBRA Notice
  • The Election Period
  • Electing or Waiving COBRA Coverage
• 7. COBRA Premiums
  • Calculation of COBRA Premiums
  • Timing and Method of Premium Payments
  • Who Makes the Premium Payments?
  • Erroneous Acceptance of COBRA Premium Payments
  • COBRA Premium Payments Under the Trade Act of 2002
  • The ARRA Premium Subsidy
• 8. COBRA Enforcement, Penalties, and Remedies
  • Overview of COBRA Remedies and Sanctions
  • Division of Enforcement Authority
  • Tax Penalty for COBRA Violations: Current Rule
  • ERISA Penalty for Failure to Issue COBRA Notices
  • Fiduciary Liability Under ERISA
  • Civil and Criminal Liability Under ERISA
  • Enforcement Actions Under ERISA
  • COBRA Violations Under the Public Health Service Act
  • Violations of the Continuation Coverage Provisions in the Uniformed Services Employment and Reemployment Rights Act
• 9. Multiemployer Group Health Plans
  • What Constitutes a Multiemployer Plan?
  • The Operation of Multiemployer Plans
  • Which Entity Is Responsible for Providing Continuation Coverage Under a Multiemployer Plan When an Employer Ceases to Contribute to the Plan?
  • Special COBRA Notice Rules for Multiemployer Group Health Plans
  • Miscellaneous COBRA Rules Affecting Multiemployer Plans
  • Application of COBRA Excise Tax Penalty Provisions to Multiemployer Plans
  • Other Penalties Applicable to Multiemployer Plans
  • Remedies
• 10. Medicare and Its Relationship to COBRA
  • What Is Medicare?
  • What Does Entitled to Medicare Mean?
  • Effect of Medicare (or Medicaid) Entitlement on Eligibility for COBRA Coverage
  • Medicare Entitlement as a COBRA Qualifying Event
  • Medicare Entitlement as a COBRA Terminating Event
  • Coordination of COBRA Coverage and Medicare
• 11. COBRA Issues in Mergers and Acquisitions
  • Stock and Asset Transactions
  • COBRA Provisions in Purchase Agreements
  • Issues Created by the Final M&A Regulations
  • Small-Employer Exception to COBRA
• 12. State Continuation Coverage Laws
  • What Is ERISA Preemption?
  • Why Is ERISA Preemption Significant?
  • Determining Whether a State Law Relates to ERISA Plans
  • Determining Whether a State Law Is Exempt from Preemption Because It Regulates the Business of Insurance
  • Determining Whether ERISA's Deemer Clause Causes a State Insurance Law to Be Preempted from Applying to Self-Insured Plans
  • Applicability of State Continuation Coverage Laws to ERISA-Covered Plans
  • Integrating State Law and COBRA Continuation Coverage Requirements
  • ERISA Preemption of State-Law Remedies for COBRA Violations
• 13. Coordination of COBRA Coverage and Other Health Benefits
  • General COB Principles
  • How Do COB Rules Relate to COBRA Coverage?
  • COB Model Regulation
  • Coordination of Group Health Plan Coverage with Medicare
• Appendix A. Regulations
  • 2004 DOL Final COBRA Regulations
  • 2001 IRS Final COBRA Regulations
  • 1999 IRS Final COBRA Regulations
• Appendix B. Model Notices
  • Model COBRA General Notice
  • Model COBRA Election Notice upon Occurrence of a Qualifying Event
• Appendix C. Sample COBRA Provisions in a Purchase Agreement
  • Sample COBRA Representations and Warranties
  • Sample COBRA Indemnification Language
  • Note Regarding 1999 IRS Transaction Guidance
• GLOSSARY
• TABLES
  • Internal Revenue Code Sections
  • IRS Announcements, Notices, Revenue Rulings, Revenue Procedures, and Letter Rulings
  • Treasury Regulations Sections
  • ERISA Sections, Releases, and Advisory Opinion Letters
  • DOL Regulations and Advisory Opinion Letters
  • Relevant Statutory Provisions, Regulations, and Other Pronouncements
  • Table of Cases
  • COBRA Cases by Issue
• INDEX

IRA M. GOLUB is a partner in the Labor and Employment Law Department of Proskauer Rose LLP, who practices exclusively in the employee benefits area. His experience encompasses virtually all aspects of employee benefits law, ranging from the establishment of welfare, pension, and profit sharing plans to the administration and termination of such programs. Mr. Golub has developed a specialty in representing plan sponsors and is a national COBRA administrator in connection with the full spectrum of issues arising under health plans, including questions regarding COBRA and HIPAA. He has recently been involved in the area of health savings accounts, representing both banks and insurers.

Mr. Golub speaks and writes frequently on employee benefit matters. He is on the Editorial Advisory Boards of Aspen's Journal of Pension Planning and Compliance and Journal of Deferred Compensation. He is a member of the American Bar Association and a member of the New York and California Bars. He received his Juris Doctor from Georgetown University Law Center and his Bachelor of Science degree from the Cornell University New York State School of Industrial and Labor Relations. Mr. Golub was formerly employed by a national actuarial consulting firm and was a trial attorney with the National Labor Relations Board

ROBERTA K. CHEVLOWE, Senior Counsel in the Labor and Employment Law Department of Proskauer Rose LLP, practices in the field of employee benefits law. Ms. Chevlowe has extensive experience advising employers and other plan sponsors with respect to all aspects of COBRA compliance and administration. In addition, she counsels clients regularly with respect to a variety of other issues relating to the establishment, administration, and continued legal compliance of pension and welfare plans, including ERISA's reporting and disclosure requirements and fiduciary duty provisions, plan qualification issues under the Internal Revenue Code, and the requirements imposed by HIPAA and many other federal and state laws affecting employee benefits. Ms. Chevlowe also assists clients in preparing and negotiating employment agreements and severance arrangements and drafting employee communication materials. In addition, she provides guidance in connection with audits, investigations, and lawsuits involving plan participants, fiduciaries, and regulatory agencies.

Ms. Chevlowe received her Juris Doctor cum laude from Brooklyn Law School, where she was the Associate Managing Editor of the Journal of International Law. She received her Bachelor of Arts degree cum laude from the State University of New York at Albany