Employee Benefits-DOL Application For Review Of Failure To Provide COBRA Subsidy Is Now Ready For Use

The Department of Labor (“DOL”) has now made available, on its website, the form to be used as an application to the DOL to request a review of a denial of an individual’s entitlement to the new COBRA subsidy (or any COBRA coverage).

By way of background, the American Economic Recovery and Reinvestment Act of 2009 (the “Act”) provided relief for certain COBRA recipients. Under the Act, individuals who become eligible for COBRA coverage (including state law “mini-COBRA” coverage) due to an involuntary termination of employment (other than for gross misconduct) occurring from September 1, 2008 through December 31, 2009 are eligible to pay a reduced premium for COBRA coverage for up to 9 months, starting March 1, 2009. Such individuals include the terminated employee and his or her spouse and dependents, and are referred to as “Assistance Eligible Individuals” or “AEIs”. This premium reduction, which equals 65% of the amount otherwise required to be paid, is referred to as the “Subsidy”.

The Act requires the DOL to establish a procedure by which the DOL may review a denial by an employer of an AEI’s eligibility for the Subsidy (or for any COBRA coverage) on an expedited basis. The DOL has now finalized this procedure, and has made available a form which an AEI may use to request DOL review of any such denial. According to the DOL’s website, any AEI, whether the former employee or a member of the employee’s family who is eligible for COBRA coverage, may file the application, and otherwise elect to receive COBRA coverage and request the Subsidy. An applicant is asked to answer all of the questions on the application to the best of his or her knowledge and ability, and to include copies of any documents that the applicant thinks would help the DOL in its review. The DOL notes that it may need to share information on the application with the AEI’s employer or plan administrator.

The application, and an explanation as to how and when the application may be used, is here. Note that the DOL’s application is to be used by AEIs who are eligible for COBRA coverage under a private employer’s group health plan which is subject to federal COBRA requirements. Other AEIs-namely those who are covered under the group health plan of a federal, state or local government, or under an insured arrangement which is subject to state law “mini-COBRA” -need to use an application to be made available by and filed with the Centers for Medicare & Medicade Services (“CMS”)