Top Ten Most Frequently Asked Questions…
1. Does the new subsidy apply to our company?
If your company currently provides the option to continue health, dental or vision coverage to individuals who experience a qualifying event, you need to be aware of the new subsidy and your potential obligations.
2. How much will the subsidy cost our business?
Basically, the COBRA subsidy requires employers to provide the government with a short-term loan through which the government will be covering 65% of the cost of coverage for eligible individuals. Employers will be initially responsible to pay 65% of the cost of coverage for eligible individuals. Once an employee remits their portion of the cost of coverage (35%), the employer is permitted to take a direct credit against their current payroll tax obligations. If the employer’s credit exceeds the amount of their tax liabilities in a quarter, they will be entitled to a refund to make up the difference.
Employers need to be aware that the legislation requires employers to submit documentation to support and justify the tax credit utilized. The Treasury has been instructed to produce additional regulations specifying the forms and documentation necessary to substantiate the credit/refund.
Also, employers are to provide those individuals who remit the full cost of continuation coverage for periods occurring during the first 60 days after enactment of the legislation with either reimbursement for the amount of premiums paid in excess or a corresponding credit reducing one or more subsequent premium payments that the individual will be required to pay to maintain coverage.
3. When does the subsidy begin?
The subsidy begins to apply for periods of coverage commencing after the date of enactment of the legislation. For most plans, this means March 1, 2009.
4. Who is eligible for the subsidy?
An individual who was involuntary terminated between September 1, 2008 and December 31, 2009, and who, because of the involuntary termination, was eligible for and elected to continue benefits under COBRA will generally be eligible to receive the subsidy. However, individuals, who are above a certain income levels, will not be eligible for the subsidy. In the event such an individual receives the subsidy and is not eligible, he or she will be subject to a corresponding increase on their tax liability.
Individuals who were involuntarily terminated as far back as September 1, 2008 who are not currently enrolled in continuation coverage will need to be provided with an additional 60 days to change their mind and elect coverage. In the event such an individual or their dependent(s) elect coverage, coverage will be effective as of March 1, 2009. Further, the individual should not be subject to any preexisting condition exclusions for the time period between September 1, 2008 and March 1, 2009
5. What type of notice(s) is required?
Employers are required to provide notice to those individuals who are eligible for the subsidy. In addition, Employers are also required to provide alternate notices, i.e., notice regarding the basis of ineligibility for the subsidy. The Department of Labor has been instructed to issue model notices and additional guidance within 30 days of the enactment of the legislation.
6. How much time do we have to provide the notices?
Employers must distribute required notices to affected individuals within 60 days of the enactment of the legislation. Again, the Department of Labor has been instructed to issue model notices and additional guidance within 30 days of the enactment of the legislation.
Those individuals and dependents given a new opportunity to change their mind and elect continuation coverage will have 60 days from the date notice is provided to elect coverage.
7. Do we need to amend our existing notices?
The legislation clarifies that employers have the option of amending existing notices or preparing addendums to supplement current notices.
8. How long can someone be eligible for and receive the subsidy?
Where an employee is eligible to continue coverage due to an involuntary termination, they could be eligible for the subsidy for up to nine months. However, the COBRA subsidy legislation does not extend the maximum amount of time an individual is otherwise eligible to continue coverage.
Additionally, an individual is no longer eligible for the subsidy at the point he or she becomes eligible for coverage under any other group health plan or Medicare. In the event an individual becomes eligible for such coverage, they are required to notify their previous employer/plan administrator of such ineligibility. Where an employee does not provide sufficient notice, he or she could be liable for up to 110% of the amount of premium assistance received.
9. Who is enforcing and overseeing compliance with the subsidy?
The Secretary of Labor, the Secretary of Health and Human Services, and the Secretary of the Treasury are charged with enforcement and oversight. The Department of Labor has been instructed to implement an expedited claims procedure to review claims brought by individuals alleging they were improperly denied the subsidy. An individual will not be required to exhaust the claims procedures set forth under the plan in order to utilize the expedited review process at the Department of Labor. Additionally, individuals may also be permitted to simultaneously bring an action in federal court. A reviewing court would be required to give deference to any determination made by the Department of Labor.
10. What do we do now to prepare for complying with the new subsidy?
Initially, employers should begin by auditing records to determine and account for those individuals who have experienced a COBRA qualifying event as far back as September 1, 2008. The type of qualifying event experienced should be noted as not all COBRA eligible individuals will be able to receive the benefit of the subsidy. For example, those eligible for COBRA due to divorce or ceasing to meet dependent status under the plan would not be eligible for the subsidy. Additionally, those who voluntarily resigned would also not be eligible to receive the subsidy.
Employers should also prepare to establish procedures to ensure compliance with future notice obligations and payroll tax reporting.
While additional guidance is still needed from the government in order to ensure proper compliance with the legislation, the time frame employers will have to react is extremely limited. Employers need to take every effort to be fully prepared in order to be able to respond to the forthcoming additional guidance and model notices in an incredibly short time frame.