The American Recovery and Reinvestment Act of The COBRA Premium Subsidy & Other Changes. By Larry Grudzien Attorney at Law

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1 The American Recovery and Reinvestment Act of 2009 The COBRA Premium Subsidy & Other Changes By Larry Grudzien Attorney at Law 1

2 What is being provided? The American Recovery and Reinvestment Act of 2009 (the Act ) approved by Congress on February 13, 2009 includes significant changes to the COBRA continuation coverage rules The Act provides a federal government subsidy of COBRA continuation coverage premiums for a maximum of 9 months for certain individuals who are COBRA qualified beneficiaries because of a covered employee s involuntary termination of employment The Act also extends COBRA continuation coverage periods for certain individuals receiving Trade Adjustment Assistance benefits or pension benefits from the Pension Benefit Guaranty Corporation 2

3 What COBRA premium subsidy is provided? The federal government will subsidize 65% of the COBRA premium actually charged to an assistance eligible individual (AEI) for up to 9 months The subsidy is not taxable to the individual receiving it 3

4 What coverage does the subsidy apply to? It applies to coverage under both the federal COBRA law and any state mini-cobra laws (i.e., state continuation laws applicable to employers with fewer than 20 employees The subsidy does not apply to COBRA premiums for health care flexible spending accounts (Health FSAs) Who receives subsidy? employer or insurer? 4

5 How is the subsidy provided? A group health plan can only require an AEI to pay 35% of the COBRA premium that the AEI would otherwise be required to pay Example: If the applicable COBRA premium is $1,020 (102% $1,000, the AEI pays 35% of $1,020 The employer makes up the difference (but gets the 65% subsidy) The federal government will reimburse an employer for the remaining 65% of the COBRA premium by allowing the employer to take a credit against the employer s liability to deposit payroll taxes and federal income taxes withheld from employees compensation The credit is applied as though the employer or insurer had submitted an equivalent amount of payroll tax on the date the qualified beneficiary s payment is received 5

6 Who are assistance eligible individuals? An AEI is a COBRA qualified beneficiary who: is eligible for COBRA coverage at any time on or after September 1, 2008 and on or before December 31, 2009 and elects COBRA coverage either during the original COBRA election period or during the special election period provided by the Act and is a COBRA qualified beneficiary because of an involuntary termination of a covered employee s employment (other than for gross misconduct) that occurs on or after September 1, 2008 and on or before December 31,

7 Who are assistance eligible individuals? Individuals who are currently covered by COBRA by reason of an involuntary termination on or after September 1, 2008 Individuals who were previously eligible for COBRA coverage by reason of an involuntary termination on or after September 1, 2008 but did not elect COBRA Individuals who were previously eligible for COBRA coverage by reason of an involuntary termination on or after September 1, 2008, elected COBRA, but are no longer covered as of the date of enactment ( DOE ) (because, for example, the individual did not pay the required premium); and Other individuals who are eligible for COBRA coverage by reason of an involuntary termination during the September 1, 2008 to December 31, 2009 period 7

8 Which qualified beneficiaries are eligible? An AEI may be a covered employee OR a covered employee s covered spouse or dependent child who became a qualified beneficiary because of the involuntary termination of the covered employee s employment Individuals who were previously eligible for COBRA continuation coverage by reason of an involuntary termination on or after September 1, 2008 but did not elect COBRA Certain individuals who are not legally entitled to COBRA (such as domestic partners) Employers who want to provide the subsidy to such individuals must impute the value of the subsidy to the individuals as taxable income and will not be able to receive any reimbursement for the subsidy Individuals whose health plans deny them eligibility for the subsidy may appeal to the Department of Labor through a newly created expedited appeal process. The DOL will have 15 days to review the employee's eligibility for the subsidy 8

9 When does the subsidy begin? The subsidy applies to periods of COBRA continuation coverage beginning after February 17, 2009 A period of coverage is the monthly (or shorter) period for which COBRA premiums are charged For group health plans using calendar months as the period of coverage, the subsidy applies beginning March 1,

10 When does the subsidy end? The subsidy ceases to apply (and a plan administrator may again charge the full COBRA premium) as of the earliest of: The date the AEI becomes eligible for coverage (not actually covered) under another group health care plan (other than plans providing only dental, vision, counseling, or referral services, a health care flexible spending plan, or a health reimbursement arrangement) or Medicare coverage or 9 months after the first day of the first month to which the subsidy applies or The end of the maximum COBRA coverage period required by law (including permissible early terminations) or For an AEI who elects COBRA during the special enrollment period under the Act, the end of the maximum COBRA coverage period that would have applied if the AEI had elected COBRA coverage when first entitled to do so 10

11 Example - Three Hypothetical Workers A B C Date of involuntary Sept. 1, 2008 Sept. 1, 2008 May 1, 2009 termination Eligible for COBRA Yes Yes Yes subsidy Elected COBRA upon Yes No Yes termination Entitled to new Already enrolled Yes Not applicable COBRA enrollment Cobra subsidy begins March 1, 2009 March 1, 2009 May 1, month COBRA Sept. 1, 2008 Sept. 1, 2008 May 1, 2009 period runs from Subsidy terminates Nov. 30, 2009 Nov. 30, 2009 Jan. 31, month COBRA period ends Feb. 28, 2010 Feb. 28, 2010 Oct. 31,

12 Does an AEI have to notify the Plan when eligible for other coverage? An AEI who becomes eligible for coverage under another group health plan is required to notify the plan providing COBRA coverage in writing An AEI who fails to provide the required written notice is subject to a penalty of 110% of the subsidy provided for the AEI after the date the AEI became eligible for the other coverage 12

13 Does the COBRA Subsidy Amount Change if Employer Subsidizes the COBRA Yes. The subsidized premium amount is determined based on the COBRA premium that the AEI is required to pay Example. If the employer is already subsidizing COBRA and pays 40% of the COBRA premium, the AEI is required to pay 35% of the remaining 60% of the premium (21% of the entire premium), not 35% of the entire premium. Employers may then seek reimbursement for the government subsidy (39% of the entire premium i.e., 65% x 60%). The employer cannot claim the subsidy credit until the 35% amount is received 13

14 Are Good Employers Punished? You decide Example. Plan sponsor currently subsidizes COBRA coverage as part of an employee s severance agreement. 102% of the applicable premium is $800, and the employer currently pays 70% of that amount, i.e., $560, and the individual pays the remaining $240. Under the new law, an AEI is entitled to COBRA upon a payment of 35% of the $240 amount, i.e., $84. The plan sponsor must pay a total of $716 ($800 minus $84) and is entitled to a payroll tax credit of $156 ($240 minus $84). The employer is punished the employer for subsidizing COBRA. If the employer had not subsidized COBRA, the employer could have paid much less money ($520 instead of $716) and received a far greater credit ($520 instead of $156). Review severance agreements? 14

15 Are all AEIs eligible for the subsidy? Although all AEIs are technically eligible for the subsidy, any AEI who is a high-income individual or the spouse or dependent of a high-income individual will be required to repay the subsidy as an additional tax on the high-income individual s individual tax return for the year in which the subsidy was provided 15

16 Who is a high-income individual? It is a single taxpayer with modified adjusted gross income in excess of $145,000 or a married taxpayer filing jointly with federal modified adjusted gross income in excess of $290,000 The subsidy recapture tax begins to phase in for a single taxpayer with federal modified adjusted gross income in excess of $125,000 or a married taxpayer filing jointly with modified adjusted gross income in excess of $250,000 16

17 May a high-income individual waive the subsidy? Yes. Qualified beneficiaries may make a one-time election to waive the COBRA subsidy. The form and manner of the waiver are to be provided by the Treasury Department following enactment. The waiver may be an attractive option for high-income qualified beneficiaries who do not want an increase in federal income tax, but it will likely add a level of administrative difficulty to COBRA administration Individuals who waive their right to premium assistance cannot claim the right in a subsequent year (e.g., 2010) if their income level qualifies So, individuals who do not qualify in 2009 (due to income level) may choose to pay the taxes associated with the recapture rather than waive the right to premium assistance Can the waiver be just not returning the election form? 17

18 What is modified adjusted gross income? Modified adjusted gross income for this purpose is adjusted gross income determined without regard to Code 911 (relating to U.S. citizens or residents living abroad), Code 931 (income from sources in Guam, American Samoa, or the Northern Mariana Islands), or Code 933 (income from sources in Puerto Rico) 18

19 What does a group health plan administrator have to do now? A group health plan administrator must take all necessary actions to provide the 65% subsidy to AEIs beginning March 1, 2009 In general, this means that an AEI is only required to pay the reduced COBRA premiums for periods of coverage beginning on or after March 1,

20 What happens if the Plan Administrator does not send the notices on March 1? If an AEI pays the full COBRA premium for the first or second period of coverage beginning after the date of enactment of the Act (i.e., periods of coverage for March and April 2009), the plan administrator must either: Credit the subsidized portion of the premium against future COBRA premiums (if the plan administrator reasonably expects the overpayment to be fully applied to future COBRA premiums within 180 days) or Refund the subsidized portion within 60 days 20

21 What does a group health plan administrator have to do in the near future? For any individual who becomes a COBRA qualified beneficiary after the enactment of the Act, the group health plan administrator must include with all other required COBRA election notices and forms specific information about the availability of the subsidy A group health plan administrator also must provide notices to two groups of AEIs within 60 days after the enactment of the Act The first notice must go to all AEIs who currently have COBRA continuation coverage to advise them of the availability of the subsidy and the requirements to qualify for the subsidy and 21

22 The 1 st Notice The 1 st notice goes to AEIs who have COBRA coverage on February 17, 2009 Send AEIs: A summary of: The COBRA premium assistance available. The requirements to qualify for the assistance. The obligation to notify the Plan if the AEI becomes eligible for Medicare or other group health coverage. An application for COBRA Premium Assistance Subsidy A form to waive the assistance (maybe) The Plan Administrator needs to review the application and notify the AEI whether the COBRA premium assistance has been approved and adjust payroll withholding accordingly 22

23 What does a group health plan administrator have to do in the near future? The second notice must go to any individual who is entitled to the special enrollment period An individual is eligible for this special enrollment period if the individual qualifies as an AEI except that the individual does not have a COBRA coverage election in effect on the date of enactment of the Act This includes an individual who previously made a COBRA coverage election but whose COBRA coverage ended before the enactment date because of non-payment of premiums Spouse & Dependents Waiver of any coverages? 23

24 The 2 nd Notice Send individuals eligible for the second chance COBRA election: An explanation of the Special Enrollment Right. A Special Enrollment Election COBRA Election Form. A summary of: the COBRA premium assistance available The requirements to qualify for the assistance The obligation to notify the Plan if the AEI becomes eligible for Medicare or other group health coverage An application form for COBRA premium assistance A form to waive the assistance (maybe). The Plan Administrator needs to review the application and notify the AEI whether the COBRA premium assistance has been approved and adjust payroll withholding accordingly 24

25 What other filing requirements do employers have? Employers (or insurers, if applicable) will be required to file reports relating to the subsidy The specific types of reports and applicable deadlines will be determined in the future by the Treasury Department, however three types of reports are currently specified 25

26 What other filing requirements do employers have? The employer (or insurer) must: Attest that each employee receiving the subsidy was involuntarily terminated File an accounting to report the payroll tax credit taken for the reporting period and the estimated credits to be taken during the following reporting period File a report of all covered employees, the amount of subsidy treated as a payroll tax credit for each employee and a designation as to whether the subsidy is for coverage of one individual or two or more individuals 26

27 What is the special election period for AEIs? An individual who would be an AEI except that the individual does not have a COBRA coverage election in effect on the date of enactment of the Act must be given a second chance to elect COBRA coverage. This special election period begins on the date of enactment of the Act and ends 60 days after the plan administrator provides the required notice described above to the individual 27

28 If an AEI elects COBRA during the special election period, when does COBRA coverage begin? COBRA coverage for an AEI who elects COBRA during the special election period begins on the first day of the first COBRA coverage period beginning after the date of enactment of the Act (March 1, 2009 for group health plans using calendar months as COBRA coverage periods) COBRA coverage is NOT retroactive to the date the AEI originally lost coverage 28

29 If an AEI elects COBRA during the special election period, when does the COBRA coverage period end? The COBRA coverage period for an AEI who elects COBRA during the special election period ends when COBRA coverage would otherwise have ended if the AEI had elected COBRA when initially eligible to do so after the qualifying event 29

30 Can pre-existing condition exclusions be applied to an AEI electing during the special enrollment period? The Act provides that the period beginning on the original qualifying event date and ending on the first day of the first COBRA coverage period beginning after the date of enactment of the Act is disregarded when determining if the AEI had 63- day significant break in coverage for purposes of applying pre-existing condition exclusions 30

31 What is the Plan Enrollment Option under the Act? Generally, a COBRA qualified beneficiary is only permitted to elect COBRA continuation coverage that is the same as the coverage the qualified beneficiary had as of the date of the COBRA qualifying event The Act permits (but does not require) an employer to allow AEIs (including AEIs that have COBRA coverage without the special election) to elect a health care coverage option different from the health care coverage originally offered to the AEI under COBRA 31

32 What requirements apply to the different coverage option? The COBRA premium for the different coverage cannot exceed the COBRA premium for the coverage in which the AEI was enrolled when the COBRA qualifying event occurred The different coverage must be coverage the employer is offering to its active employees at the time the AEI elects the different coverage The different coverage cannot provide only dental, vision, counseling or referral services (singly or in any combination) and cannot be a health care flexible spending account or an onsite facility primarily providing first aid, prevention, or wellness care 32

33 When is an AEI permitted to elect different coverage? If an employer decides to offer the different coverage option to an AEI, the employer must provide the AEI an election notice and allow an election period of not less than 90 days 33

34 What questions are not addressed by the Act? The term involuntary termination is not defined in the Act There is no guidance as to when an AEI electing COBRA during the special enrollment period must pay the initial premium for COBRA coverage Effect of FMLA, USERRA or disability leave? 34

35 How does the Act extend the COBRA coverage period? The Act extends the initial COBRA coverage period for two distinct groups of COBRA qualified beneficiaries following a termination of employment or reduction in hours of a covered employee COBRA qualifying event: If the covered employee has (as of the qualifying event date) a nonforfeitable right to receive any pension benefits directly from the Pension Benefit Guaranty Corporation (PBGC), the maximum COBRA coverage period for the covered employee ends on the covered employee s date of death The maximum COBRA coverage period for the covered employee s surviving spouse or dependent children ends 24 months after the covered employee s date of death If the covered employee is a Trade Adjustment Assistance-eligible individual (as of the date COBRA coverage would otherwise end because of the regular 18-month or 36-month COBRA coverage periods), the maximum COBRA coverage period ends on the date the covered employee ceases to be a Trade Adjustment Assistance-eligible individual. 35

36 Is there a limit on these extended COBRA coverage periods? A COBRA coverage period cannot be extended beyond December 31, 2010 under either of the provisions provided in the previous slide 36

37 When do the extended COBRA coverage periods become effective? These extensions to the maximum COBRA coverage periods for these groups of qualified beneficiaries apply to any COBRA coverage periods that would otherwise end on or after the date of enactment of the Act 37

38 Questions? Contact Information Larry Grudzien, Attorney at Law Phone: Visit my Ask Larry page at 38

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