[4830-01-u]

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Parts 54 and 602

[TD 8812]

RIN 1545-AI93

Continuation Coverage Requirements Applicable to Group Health Plans

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final rule.

SUMMARY: The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) added

health care continuation requirements that apply to group health plans. Coverage required to be

provided under those requirements is referred to as COBRA continuation coverage. Proposed

regulations interpreting the COBRA continuation coverage requirements were published in the

Federal Register of June 15, 1987 and of January 7, 1998. This document contains final

regulations based on these two sets of proposed regulations. The final regulations also reflect

statutory amendments to the COBRA continuation coverage requirements since COBRA was

enacted. A new set of proposed regulations addressing additional issues under the COBRA

continuation coverage provisions is being published elsewhere in this issue of the Federal

Register. The regulations will generally affect sponsors of and participants in group health plans,
 - 2 -

and they provide plan sponsors and plan administrators with guidance necessary to comply with

the law.

DATES: Effective Date: These regulations are effective February 3, 1999.

Applicability Dates: Sections 54.4980B-1 through 54.4980B-8 apply to group health

plans with respect to qualifying events occurring in plan years beginning on or after January 1,

2000. See the Effective Date portion of this preamble and Q&A-2 of §54.4980B-1.

FOR FURTHER INFORMATION CONTACT: Yurlinda Mathis, 202-622-4695. This is not a

toll-free number.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

The collections of information contained in these final regulations have been reviewed and

approved by the Office of Management and Budget in accordance with the Paperwork Reduction

Act of 1995 (44 U.S.C. 3507) under control number 1545-1581. Responses to these collections

of information are mandatory in some cases and required in order to obtain a benefit in other

cases. Group health plans are required to provide certain individuals a notice of their COBRA

continuation coverage rights when certain qualifying events occur and are required to inform

health care providers who contact the plan to confirm the coverage of certain individuals of the

individuals’ complete rights to coverage. To obtain COBRA continuation coverage or extended

coverage, certain individuals are required to notify the plan administrator of certain events or that

they are electing COBRA continuation coverage, and plans are required to notify certain

individuals of insignificant underpayments if the plan wishes to require the individuals to pay the

deficiency. This information will be used to advise employers and plan administrators of their
 - 3 -

obligation to offer COBRA continuation coverage, or an extended period of such coverage; to

advise qualified beneficiaries of their right to elect COBRA continuation coverage and of

insignificant errors in payment; and to inform health care providers of individuals’ rights to

COBRA continuation coverage.

An agency may not conduct or sponsor, and a person is not required to respond to, a

collection of information unless the collection of information displays a valid control number.

The estimated average annual burden per respondent varies from 30 seconds to 330 hours,

depending on individual circumstances, with an estimated average of 14 minutes.

Comments concerning the accuracy of this burden estimate and suggestions for reducing

this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance

Officer, OP:FS:FP, Washington, DC 20224, and to the Office of Management and Budget,

Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory

Affairs, Washington, DC 20503.

Books or records relating to these collections of information must be retained as long as

their contents may become material in the administration of any internal revenue law. Generally,

tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

Background

On June 15, 1987, proposed regulations (EE-143-86) relating to continuation coverage

requirements applicable to group health plans were published in the Federal Register (52 FR

22716). A public hearing was held on November 4, 1987. Written comments were also received.

A supplemental set of proposed regulations (REG-209485-86) was published in the Federal

Register of January 7, 1998 (63 FR 708). No public hearing was requested or held after the
 - 4 -

publication of the supplemental proposed regulations; written comments were received. After

consideration of these comments, after review of the reported court decisions under the parallel

COBRA continuation coverage provisions of the Employee Retirement Income Security Act of

1974 (ERISA) and the Public Health Service Act, and based on the experience of the IRS in

administering the COBRA continuation coverage requirements, a portion of the regulations

proposed by EE-143-86 and REG-209485-86 is adopted as revised by this Treasury decision.

The revisions are summarized in the explanation below. Also being published elsewhere in this

issue of the Federal Register is a new set of proposed regulations, which addresses additional

issues.

Explanation of Provisions

Overview

The regulations are intended to provide clear, administrable rules regarding COBRA

continuation coverage. The regulations give comprehensive guidance on many questions under

COBRA, with a view to enhancing the certainty and reliance available to all parties – including

employees, qualified beneficiaries, employers, employee organizations, and group health plans – in

determining their COBRA rights and obligations. The guidance is designed to further the

protective purposes of COBRA without undue administrative burdens or costs on employers,

employee organizations, or group health plans.

For example, the regulations:

• Prevent group health plans from terminating COBRA continuation coverage on the

basis of other coverage that a qualified beneficiary had prior to electing COBRA
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continuation coverage, in accordance with the Supreme Court’s decision in

Geissal v. Moore Medical Corp.

• Give employers and employee organizations significant flexibility in determining,

for purposes of COBRA, the number of group health plans they maintain. This

will reduce burdens on employers and employee organizations by permitting them

to structure their group health plans in an efficient and cost-effective manner and

to satisfy their COBRA obligations based upon that structure.

• Provide baseline rules for determining the COBRA liabilities of buyers and sellers

of corporate stock and corporate assets and permit buyers and sellers to reallocate

and carry out those liabilities by agreement. This will significantly enhance

employers’ ability to negotiate and to plan appropriately for the treatment of

qualified beneficiaries in connection with mergers and acquisitions, while

protecting the rights of qualified beneficiaries affected by the transactions.

• Limit the application of COBRA for most health flexible spending arrangements.

This will ensure that COBRA continuation coverage under health flexible spending

arrangements is available in appropriate cases without requiring continuation

coverage where that would not serve the statutory purposes.

• Eliminate the requirement that group health plans offer qualified beneficiaries the

option to elect only core (health) coverage under a group health plan that

otherwise provides both core and noncore (vision and dental) coverage.

• Give employers, in determining whether the small-employer plan exception applies,

the option of counting by pay period rather than by every business day, and
 - 6 -

provide, for that exception, for the consistent treatment of part-time employees

through the use of full-time equivalents.

The COBRA continuation coverage requirements enacted on April 7, 1986 have been

amended by the Omnibus Budget Reconciliation Act of 1986 (OBRA 1986), the Tax Reform Act

of 1986 (TRA 1986), the Technical and Miscellaneous Revenue Act of 1988 (TAMRA), the

Omnibus Budget Reconciliation Act of 1989 (OBRA 1989), the Omnibus Budget Reconciliation

Act of 1990 (OBRA 1990), the Small Business Job Protection Act of 1996 (SBJPA), and the

Health Insurance Portability and Accountability Act of 1996 (HIPAA).1 These amendments made

numerous clarifications and modifications to the COBRA continuation coverage requirements,

moved the requirements from section 162(k) to section 4980B, added various other features, such

as the disability extension to the required period of coverage, and significantly altered the

sanctions imposed on employers and plans for failing to comply with the requirements. The

specific changes made by these amendments are discussed below in connection with the

provisions of the regulations that relate to them.

The legislative history of COBRA provides that the Department of the Treasury has the

authority to interpret the coverage and tax sanction provisions of COBRA and that the

Department of Labor has the authority to interpret the reporting and disclosure provisions.

Accordingly, these regulations apply in interpreting the coverage provisions of COBRA in Title I

of ERISA, as well as those in the Internal Revenue Code. With minor exceptions, the final

1
The COBRA continuation coverage requirements have also been affected by an
amendment made to the definition of group health plan by the Omnibus Budget Reconciliation
Act of 1993 (OBRA 1993). OBRA 1993 amended the definition of group health plan in section
5000(b)(1), which the COBRA continuation coverage provisions of the Internal Revenue Code
incorporate by reference.
 - 7 -

regulations and the new proposed regulations being published today do not address the notice

provisions of the COBRA continuation coverage requirements.

Organization

The final regulations being published today follow the structure of the 1987 proposed

regulations, with related questions-and-answers grouped into topics. Each topic is now in a

separate section, and sections have been added to the new proposed regulations being published

today for (1) business reorganizations and employer withdrawals from multiemployer plans and

(2) the interaction of the Family and Medical Leave Act of 1993 (FMLA) and COBRA. The

substance of the 1998 proposed regulations has been integrated into the questions-and-answers of

the 1987 proposed regulations. The ordering of some of the questions-and-answers has changed,

and all of the questions-and-answers relating to the original statutory effective date have been

deleted. In addition, in a few cases, the content of two separate questions-and-answers in the

1987 proposed regulations has been combined into a single question-and-answer; in other cases

the content of a single question-and-answer has been expanded to two or more questions-and-

answers. These changes have resulted in the renumbering of the questions-and-answers. The new

proposed regulations being published today are designed to fill gaps designated in the final

regulations as reserved.

Effective Date

The 1987 proposed regulations provide that they will be effective upon publication as final

regulations. Some commenters suggested that the final regulations should have a delayed

effective date. The final regulations follow this suggestion; they apply with respect to qualifying

events occurring in plan years beginning on or after January 1, 2000. For any period before the
 - 8 -

effective date of the final regulations, the plan and the employer must operate in good faith

compliance with a reasonable interpretation of the requirements in section 4980B. For the period

before the effective date of the final regulations, the IRS will consider compliance with the

proposed regulations in §1.162-26 (the 1987 proposed regulations) and §54.4980B-1 (the 1998

proposed regulations) to constitute good faith compliance with a reasonable interpretation of the

statutory requirements for the topics that those proposed regulations address, except to the extent

inconsistent with a statutory amendment adopted after the dates the proposed regulations were

issued, during the period the amendment is effective, or with a decision of the United States

Supreme Court released after the proposed regulations were issued, during the period after the

decision is released. For any period beginning on or after the effective date of the final regulations

with respect to topics not addressed in the final regulations, such as how to calculate the

applicable premium, the plan and the employer must operate in good faith compliance with a

reasonable interpretation of the requirements in section 4980B.

Compliance with the new proposed regulations will constitute good faith compliance with

a reasonable interpretation of the statutory requirements addressed in the new proposed

regulations until the new proposed regulations are finalized. In addition, actions inconsistent with

the terms of the new proposed regulations will not necessarily constitute a lack of good faith

compliance with a reasonable interpretation of the statutory requirements addressed in the new

proposed regulations; whether there has been good faith compliance with a reasonable

interpretation of the statutory requirements will depend on all the facts and circumstances of each

case.
 - 9 -

The IRS will not assess the excise tax with respect to a plan that operates in good faith

compliance with a reasonable interpretation of the statutory requirements, as described in the

preceding two paragraphs. Note, however, that in the case of lawsuits brought by qualified

beneficiaries to enforce their COBRA continuation coverage rights under ERISA or the Public

Health Service Act, the courts generally have not applied any good faith compliance standard.

Plans That Must Comply

The final regulations provide rules regarding which group health plans are subject to

COBRA. These rules are generally similar to those set forth in the 1987 proposed regulations.

However, the rules for determining, for purposes of the COBRA continuation coverage

requirements, the number of group health plans maintained by an employer have been deleted, and

the new proposed regulations set forth substantially different rules, which provide that employers

and employee organizations generally have broad discretion to determine the number of group

health plans that they maintain. Other significant changes to the 1987 proposed regulations on

this point (some of which are set forth in the 1998 proposed regulations) include exceptions for

long-term care services and medical savings accounts and new rules regarding the small-employer

plan exception.

As in the 1987 proposed regulations, the final regulations provide that, in general, all

group health plans are subject to the COBRA continuation coverage requirements. However,

small-employer plans (discussed below), church plans (within the meaning of section 414(e)), and

governmental plans (within the meaning of section 414(d)) are not subject to COBRA. (The final

regulations refer to these as plans excepted from COBRA.) Plans excepted from COBRA are

generally not subject to the COBRA continuation coverage requirements or the COBRA excise
 - 10 -

tax, although group health plans maintained by state or local governments are subject to parallel

continuation coverage requirements in the Public Health Service Act (which is administered by the

Department of Health and Human Services). Also, the Federal Employees Health Benefit

Program is subject to generally similar, although not parallel, temporary continuation of coverage

provisions under the Federal Employees Health Benefits Amendments Act of 1988.

The final regulations define group health plan in a manner generally similar to that in the

1987 proposed regulations. However, certain changes in terminology have been made to reflect

the statutory cross-reference to section 5000(b)(1) set forth in section 4980B(g)(2) (such as the

use of the term health care and the definition of employee). Additionally, the final regulations, in

accordance with section 4980B(g)(2), provide that a plan is not a group health plan if

substantially all the coverage provided under the plan is for qualified long-term care services (as

defined in section 7702B(c)). The final regulations allow plans to use any reasonable method in

determining whether a plan satisfies this exception. The final regulations also provide, in

accordance with section 106(b)(5), that amounts contributed by an employer to a medical savings

account (as defined in section 220(d)) are not considered part of a group health plan for purposes

of COBRA (although a high-deductible health plan will not fail to be a group health plan simply

because it covers a holder of a medical savings account).

Under the final regulations, a group health plan is a plan maintained by an employer or

employee organization to provide health care to individuals who have an employment-related

connection to the employer or employee organization or to the families of such individuals. In

accordance with section 5000(b)(1), these individuals include employees, former employees, the

employer, and others associated or formerly associated with the employer or employee
 - 11 -

organization in a business relationship. The final regulations generally refer to all individuals

covered under a plan by virtue of the performance of services or by virtue of membership in an

employee organization as employees. (As discussed below, the term employee has a narrower

meaning for purposes of the small-employer plan exception.) The final regulations use the term

employer to refer to a person for whom an individual performs services. Pursuant to section

414(t), the term employer also includes, with respect to such a person, any member of a group

described in section 414(b), (c), (m), or (o) that includes the person (a controlled group) as well

as any successor of the person or of a member of the controlled group.

Under the final regulations, as under the 1987 proposed regulations, a plan generally is

considered to provide health care whether it does so directly or through insurance,

reimbursement, or other means and whether it does so through an on-site facility or a cafeteria or

other flexible benefit arrangement. Insurance includes group insurance policies and one or more

individual policies under an arrangement maintained by the employer or employee organization to

provide health care to two or more employees. Under the final regulations, as under the 1987

proposed regulations, in the case of a cafeteria plan or other flexible benefit arrangement, the

COBRA continuation coverage requirements apply only to the health care benefits under the

cafeteria plan or other flexible benefit arrangement that an employee has actually chosen to

receive.

Many commenters on the 1987 proposed regulations requested clarification of the

application of COBRA to health care benefits provided under flexible spending arrangements

(health FSAs). Some commentators argued that health FSAs should not be subject to COBRA.

Health FSAs satisfy the definition of group health plan in section 5000(b)(1) and, accordingly, are
 - 12 -

generally subject to the COBRA continuation coverage requirements. However, COBRA is

intended to ensure that a qualified beneficiary has guaranteed access to coverage under a group

health plan and that the cost of that coverage is no greater than 102 percent of the applicable

premium.

The IRS and Treasury believe that the purposes of COBRA are not furthered by requiring

an employer to offer COBRA for a plan year if the amount that the employer could require to be

paid for the COBRA coverage for the plan year would exceed the maximum benefit that the

qualified beneficiary could receive under the FSA for that plan year and if the qualified beneficiary

could not avoid a break in coverage, for purposes of the HIPAA portability provisions2, by

electing COBRA coverage under the FSA. Accordingly, the new proposed regulations contain a

rule limiting the application of the COBRA continuation coverage requirements in the case of

health FSAs.

Under this rule, if the health FSA satisfies two conditions, the health FSA need not make

COBRA continuation coverage available to a qualified beneficiary for any plan year after the plan

year in which the qualifying event occurs. The first condition that the health FSA must satisfy for

this exception to apply is that the health FSA is not subject to the HIPAA portability provisions in

sections 9801 though 9833 because the benefits provided under the health FSA are excepted

benefits. (See sections 9831 and 9832.)3 The second condition is that, in the plan year in which

2
Under HIPAA, a qualified beneficiary who maintains coverage after termination of
employment under a group health plan that is subject to HIPAA can avoid a break in coverage
and thereby avoid becoming subject to a preexisting condition exclusion upon later becoming
covered by another group health plan.
3
The IRS and Treasury, together with the U.S. Department of Labor and the U.S.
Department of Health and Human Services, have issued a notice (62 FR 67688) holding that a
 - 13 -

the qualifying event of a qualified beneficiary occurs, the maximum amount that the health FSA

could require to be paid for a full plan year of COBRA continuation coverage equals or exceeds

the maximum benefit available under the health FSA for the year. It is contemplated that this

second condition will be satisfied in most cases.

Moreover, if a third condition is satisfied, the health FSA need not make COBRA

continuation coverage available with respect to a qualified beneficiary at all. This third condition

is satisfied if, as of the date of the qualifying event, the maximum benefit available to the qualified

beneficiary under the health FSA for the remainder of the plan year is not more than the maximum

amount that the plan could require as payment for the remainder of that year to maintain coverage

under the health FSA.

A plan is maintained by an employer or employee organization even if the employer or

employee organization does not directly or indirectly contribute to it if coverage under the plan

would not be available to an individual at the same cost if the individual did not have an

employment-related connection to the employer or employee organization. The final regulations,

for purposes of the definition of a group health plan, use the term health care instead of the term

medical care (which was used in the 1987 proposed regulations). This change reflects the change

in the definition of group health plan made by OBRA 1989. However, the final regulations

provide that health care has the same meaning as the term medical care under section 213(d).

health FSA is exempt from HIPAA because the benefits provided under it are excepted benefits
under sections 9831 and 9832 if the employer also provides another group health plan, the
benefits under the other plan are not limited to excepted benefits, and the maximum
reimbursement under the health FSA is not greater than two times the employee’s salary reduction
election (or if greater, the employee’s salary reduction election plus five hundred dollars).
 - 14 -

Like the 1987 proposed regulations, the final regulations set forth a summary of items that do and

do not constitute health care.

The final regulations, generally following the 1987 proposed regulations, set forth rules

for determining whether a group health plan is a small-employer plan. In general, a group health

plan other than a multiemployer plan is a small-employer plan if it is maintained for a calendar

year by an employer that normally employed fewer than 20 employees during the preceding

calendar year, and a group health plan that is a multiemployer plan is a small-employer plan if each

of the employers contributing to the plan for a calendar year normally employed fewer than 20

employees during the preceding calendar year. Whether the plan is a multiemployer plan or not,

the term employer includes all members of a controlled group. An example in the final regulations

clarifies that the controlled group includes foreign members, and thus a U.S. subsidiary with fewer

than 20 employees is subject to COBRA if the controlled group has 20 or more employees world-

wide. The final regulations set forth additional rules for the application of the small-employer

plan exception to multiemployer plans, and the new proposed regulations contain the same

definition of multiemployer plan that is in section 414(f).

Under the final regulations, an employer is considered to have normally employed fewer

than 20 employees during a particular calendar year if it had fewer than 20 employees on at least

50 percent of its typical business days during that year. This rule differs from the rule in the 1987

proposed regulations in two ways. First, the 1987 proposed regulations use the term working

days, whereas the final regulations use the statutory term typical business days.

The second difference relates to the term employee. Under the 1987 proposed

regulations, self-employed individuals and independent contractors are counted as employees for
 - 15 -

purposes of the small-employer plan exception if they are covered under a plan of the employer.

Commenters argued that only common law employees should be counted for this purpose. Unlike

the definition of covered employee (amended by OBRA 1989 to make clear that individuals who

are not common law employees but who are covered under the group health plan of an employer

or employee organization by virtue of the performance of services are still considered covered

employees) and the definition of group health plan (amended by OBRA 1993 to make clear that a

health plan covering individuals who are not common law employees of the employer or employee

organization, and who are not family members of common law employees, is still a group health

plan)the reference to employees for purposes of the small-employer plan exception have not been

amended to include individuals who are not common law employees. Consequently, under the

final regulations, only common law employees are taken into account for purposes of the small-

employer plan exception; self-employed individuals, independent contractors, and directors are

not counted.

Although a small-employer plan is generally excepted from COBRA, a plan that is not a

small-employer plan for a period remains subject to COBRA for qualifying events that occurred

during that period, even if it subsequently becomes a small-employer plan.

In determining whether a plan is eligible for the small-employer plan exception, part-time

employees, as well as full-time employees, must be taken into account. Several commenters on

the 1987 proposed regulations requested clarification of how to count part-time employees for the

small-employer plan exception, and the new proposed regulations provide guidance on this issue.

Under the new proposed regulations, instead of each part-time employee counting as a full

employee, each part-time employee counts as a fraction of an employee, with the fraction equal to
 - 16 -

the number of hours that the part-time employee works for the employer divided by the number of

hours that an employee must work in order to be considered a full-time employee. The number of

hours that must be worked to be considered a full-time employee is determined in a manner

consistent with the employer’s general employment practices, although for this purpose not more

than eight hours a day or 40 hours a week may be used. An employer may count employees for

each typical business day or may count employees for a pay period and attribute the total number

of employees for that pay period to each typical business day that falls within the pay period. The

employer must use the same method for all employees and for the entire year for which the small-

employer plan determination is made.

In determining whether a multiemployer plan satisfies the requirements for the small-

employer plan exception, the 1987 proposed regulations provide a special rule permitting the

multiemployer plan to be considered a small-employer plan for a year if any contributing employer

that grew to be too large to qualify for the exception during the preceding year ceases to

contribute to the plan by February 1 of the current year. Questions have been raised about the

need for and the authority for this special rule, and one commenter pointed out the uncertainty of

how to deal with a qualified beneficiary experiencing a qualifying event under such a plan in

January of the current year if the qualified beneficiary needed confirmation of coverage for urgent

services before it was clear that the too-large employer would cease contributing to the

multiemployer plan by February 1. Based on these concerns, the final regulations eliminate this
 - 17 -

an employer or employee organization maintains. Under these rules, the employer or employee

organization is generally permitted to establish the separate identity and number of group health

plans under which it provides health care benefits to employees. Thus, if an employer or

employee organization provides a variety of health care benefits to employees, it generally may

aggregate the benefits into a single group health plan or disaggregate benefits into separate group

health plans. The status of health care benefits as part of a single group health plan or as separate

plans is determined by reference to the instruments governing those arrangements. If it is not

clear from the instruments governing an arrangement or arrangements to provide health care

benefits whether the benefits are provided under one plan or more than one plan, or if there are no

instruments governing the arrangement or arrangements, all such health care benefits (other than

those for qualified long-term care services) provided by a single entity (determined without regard

to the controlled group) constitute a single group health plan.

Under the new proposed regulations, a multiemployer plan and a plan other than a

multiemployer plan are always separate plans. In addition, any treatment of health care benefits as

constituting separate group health plans will be disregarded if a principal purpose of the treatment

is to evade any requirement of law. Of course, an employer’s flexibility to treat benefits as part of

separate plans may be limited by the operation of other laws, such as the prohibition in section

9802 on conditioning eligibility to enroll in a group health plan on the basis of any health factor of

an individual.

The final regulations modify the rules set forth in the 1987 proposed regulations for

determining the plan year of a group health plan under COBRA. These modifications are made to

be consistent with the rules in the temporary regulations under HIPAA. The definition of plan
 - 18 -

year is important in applying, for example, the effective date provisions under the final regulations

and the rules for health FSAs under the new proposed regulations. Under the final regulations,

the plan year is the year designated as such in the plan documents. If the plan documents do not

designate a plan year (or if there are no plan documents), the plan year is the deductible/limit year

used by the plan. If the plan does not impose deductibles or limits on an annual basis, the plan

year is the policy year. If the plan does not impose deductibles or limits on an annual basis and

the plan is not insured (or the insurance policy is not renewed annually), the plan year is the

taxable year of the employer. In any other case, the plan year is the calendar year.

The final regulations reflect the statutory provisions that provide for the imposition of an

excise tax in the event of a failure by a group health plan to comply with the COBRA continuation

coverage requirements of section 4980B(f). In the case of a multiemployer plan, the excise tax is

imposed on the plan4; in the case of any other plan, the excise tax is imposed on the employer

maintaining the plan. In certain circumstances, the excise tax can be imposed on other persons

involved with the provision of benefits under the plan, such as an insurer providing benefits under

the plan or a third party administrator administering claims under the plan. Separate, non-tax

remedies may be available in the case of a plan that fails to comply with the COBRA continuation

coverage requirements in ERISA.

Qualified Beneficiaries

4
In this regard, the U.S. Department of Labor has advised the IRS and Treasury that to
the extent a plan fiduciary subjects a plan to liability for the COBRA excise tax on account of her
or his imprudent actions, the plan fiduciary may be held personally liable under Title I of ERISA
for the amount of the tax.
 - 19 -

The rules in the final regulations for determining who is a qualified beneficiary generally

follow those set forth in the 1987 proposed regulations, as well as those set forth in the 1998

proposed regulations regarding the status of newborn and adopted children as qualified

beneficiaries. However, certain provisions have been added to the final regulations to reflect the

special statutory rules that apply in the case of bankruptcy of the employer as a qualifying event.

Modifications have also been made to reflect the decision of the Supreme Court in Geissal v.

Moore Medical Corp., 118 S. Ct. 1869 (1998), which held that an individual

covered under another group health plan at the time she or he elects COBRA continuation

coverage cannot be denied COBRA continuation coverage on the basis of that other coverage.

Under the final regulations, a qualified beneficiary is, in general: (1) any individual who,

on the day before a qualifying event, is covered under a group health plan either as a covered

employee, the spouse of a covered employee, or the dependent child of a covered employee; or

(2) any child born to or placed for adoption with a covered employee during a period of COBRA

continuation coverage. (The final regulations retain the definitions of the terms placement for

adoption and being placed for adoption that were in the 1998 proposed regulations.) For a

qualifying event that is the bankruptcy of the employer, any covered employee who retired on or

before the date of any substantial elimination of group health plan coverage is a qualified

beneficiary; the spouse, surviving spouse, or dependent child of the retired covered employee is

also a qualified beneficiary if the spouse, surviving spouse, or dependent child was a beneficiary

under the plan on the day before the bankruptcy qualifying event. The final regulations add a

provision clarifying that if an individual is denied coverage under a group health plan in violation
 - 20 -

of applicable law (including HIPAA) and experiences an event that would be a qualifying event if

the coverage had not been wrongfully denied, the individual is considered a qualified beneficiary.

A covered employee can be a qualified beneficiary only in connection with a qualifying

event that is the termination (or reduction of hours) of the covered employee’s employment or the

employer’s bankruptcy. As under the 1987 proposed regulations, the final regulations provide

that a covered employee is not a qualified beneficiary if her or his status as a covered employee is

attributable to certain periods in which she or he was a nonresident alien (in which case the

covered employee’s spouse and dependent children are also not qualified beneficiaries). Although

a child born to or placed for adoption with a covered employee during a period of COBRA

continuation coverage is a qualified beneficiary, a child born to or placed for adoption with a

qualified beneficiary other than the covered employee after a qualifying event, or a person who

becomes the spouse of a qualified beneficiary (regardless of whether the qualified beneficiary is

the covered employee) after a qualifying event is not a qualified beneficiary. The final regulations

retain the rule of the 1987 proposed regulations under which an individual is not a qualified

beneficiary if, on the day before the qualifying event, the individual is covered under the group

health plan solely because of another individual’s election of COBRA continuation coverage.

However, consistent with Geissal, the final regulations eliminate the rule in the 1987 proposed

regulations that an individual is not a qualified beneficiary if, on the day before the qualifying

event, the individual was entitled to Medicare benefits.

An individual ceases to be a qualified beneficiary if she or he does not elect COBRA

continuation coverage by the end of the election period (discussed below). The final regulations
 - 21 -

clarify that an individual who elects COBRA continuation coverage ceases to be a qualified

beneficiary once the plan’s obligation to provide COBRA continuation coverage has ended.

The term covered employee is defined in the final regulations in a manner substantially the

same as in the 1987 proposed regulations. Although some commenters on the 1987 proposed

regulations objected to the inclusion in this definition of individuals other than common law

employees, the statutory definition was amended by OBRA 1989 to include such individuals.

Under the final regulations, a covered employee generally includes any individual who is or has

been provided coverage under a group health plan (other than one excepted from COBRA as of

the date of what would otherwise be a qualifying event) because of her or his present or past

performance of services for the employer maintaining the group health plan (or by reason of

membership in the employee organization maintaining the plan). Thus, retirees and former

employees covered by a group health plan are covered employees if the coverage is provided in

whole or in part because of the previous employment. Any individual who performs services for

the employer maintaining the plan or who is a member of the employee organization maintaining
 - 22 -

The rules regarding qualifying events under the final regulations generally are the same as

those in the 1987 proposed regulations. Under the final regulations, a qualifying event is any of a

set of specified events that occurs while a group health plan is subject to COBRA and that causes

a covered employee (or the spouse or dependent child of the covered employee) to lose coverage

under the plan. These specified events are: the death of a covered employee; the termination

(other than by reason of gross misconduct), or reduction of hours, of a covered employee’s

employment; the divorce or legal separation of a covered employee from the covered employee’s

spouse; a covered employee’s becoming entitled to Medicare benefits under Title XVIII of the

Social Security Act; a dependent child’s ceasing to be a dependent child of the covered employee

under the plan; and a proceeding in bankruptcy under Title 11 of the United States Code with

respect to an employer from whose employment a covered employee retired at any time. The

addition of employer bankruptcy as a qualifying event reflects the amendments made to COBRA

by OBRA 1986.

The reasons for which an employee has a termination of employment or a reduction of

hours of employment generally are not relevant in determining whether the termination or

reduction of hours is a qualifying event. Thus, a voluntary termination, a strike, a lockout, a

layoff, or an involuntary discharge each may constitute a qualifying event. However, if an

employee is discharged for gross misconduct, the termination of employment does not constitute

a qualifying event. The final regulations clarify that a reduction of hours of a covered employee’s

employment includes any decrease in the number of hours that a covered employee works or is

required to work that does not constitute a termination of employment. Thus, if a covered

employee takes a leave of absence, is laid off, or otherwise performs no hours of work during a
 - 23 -

period, the covered employee has experienced a reduction in hours that, if the other applicable

requirements are satisfied, constitutes a qualifying event. (But see Notice 94-103 (1994-2 C.B.

569) and the new proposed regulations, described below, for special rules regarding FMLA

leave.) A covered employee’s loss of coverage by reason of a failure to work the minimum

number of hours required for coverage constitutes a reduction of hours of employment.

Under the final regulations, to lose coverage means to cease to be covered under the same

terms and conditions as in effect immediately before the event. The final regulations clarify that a

loss of coverage includes an increase in an employee premium or contribution resulting from one

of the events described above. The loss of coverage need not be concurrent with the event; it is

enough that the loss of coverage occur at any time before the end of the maximum coverage

period (described below). For employer bankruptcies, the term to lose coverage also includes a

substantial elimination of coverage that occurs within 12 months before or after the date on which

the bankruptcy proceeding begins.

Under the final regulations, as under the 1987 proposed regulations, reductions or

eliminations in coverage in anticipation of an event are disregarded in determining whether the

event results in a loss of coverage. Although several commenters objected to this rule, the final

regulations retain the provision in order to protect qualified beneficiaries from being deprived of

their COBRA rights because an employer or employee organization transposes a loss or reduction

of coverage to a time before the qualifying event. This rule also applies in cases where a covered

employee discontinues the coverage of a spouse in anticipation of a divorce or legal separation.

In such a case, upon receiving notice of the divorce or legal separation, a plan is required to make
- 24 -
 - 25 -

employees” is still used because in those contexts – such as the right to make an independent

election for COBRA continuation coverage – qualified beneficiaries who are spouses and

dependent children of covered employees are entitled to the rights that employees have (and in

those contexts, spouses and dependent children who are not qualified beneficiaries typically do

not have the rights that employees have).

The 1987 proposed regulations address in a separate question-and-answer the type of

coverage that must be made available to qualified beneficiaries if a change is made in the coverage

provided to similarly situated nonCOBRA beneficiaries. The final regulations include this rule in

the question-and-answer that defines COBRA continuation coverage. In doing so, the final

regulations delete several specific requirements in the 1987 proposed regulations. For example, if

coverage for the similarly situated nonCOBRA beneficiaries is changed or eliminated, the 1987

proposed regulations require that qualified beneficiaries be permitted to elect coverage under any

remaining plan made available to the similarly situated active employees. Many commenters

objected that in the case of a mere change in benefits, the requirement to give qualified

beneficiaries an election among other plans would give them greater rights than those active

employees might have. The final regulations follow the suggestion of the commenters in

providing that the general principle – that qualified beneficiaries have the same rights as similarly

situated nonCOBRA beneficiaries – applies in this situation. The same principle also applies in

determining whether credit for deductibles must be carried over from a discontinued plan to a new

plan. Nevertheless, if an employer or employee organization providing more than one plan to a

group of similarly situated nonCOBRA beneficiaries eliminates benefits under one plan without

giving the similarly situated nonCOBRA beneficiaries the right to enroll in another plan, that
- 26 -
- 27 -
 - 28 -

beneficiaries cannot be made available in the area that the qualified beneficiary is moving to, then

the coverage that must be made available is coverage provided to other employees.

The 1987 proposed regulations require, in the case of a plan providing open enro llment

rights, that open enrollment rights be extended to qualified beneficiaries if an employer maintains

two or more plans. Thus, that rule, by its terms, does not require that open enrollment rights be

given if an employer maintains a single plan and allows active employees during open enrollment

to switch between categories of coverage such as single and family or among categories such as

employee-only, employee-plus-one-dependent, or employee-plus-two-or-more-dependents. The

final regulations eliminate the condition that an employer or employee organization maintain two

or more plans for a qualified beneficiary to have open enrollment rights. Thus, open enrollment

rights must be extended to qualified beneficiaries in any case in which they are extended to

similarly situated active employees. (Note that the open enrollment right of employees to enroll

when not previously enrolled would not have to be extended to individuals who previously did not

elect to receive COBRA continuation coverage because an individual ceases to be a qualified

beneficiary if COBRA continuation coverage is not elected.)

The 1987 proposed regulations require that qualified beneficiaries be given the same right

to add new family members that similarly situated active employees have. Many commenters

objected to this rule, arguing that it requires more than a mere continuation of coverage.

However, COBRA continuation coverage is more than just a continuation of the coverage a

qualified beneficiary had before the qualifying event; it includes the same procedural rights to

expand or change coverage that similarly situated active employees have. Moreover, the policy

behind the 1987 proposed regulations is reflected in the HIPAA amendment to COBRA creating
 - 29 -

special qualified beneficiary status for certain newborn and adopted children as well as in the

HIPAA special enrollment rights in section 9801(f) for new spouses and for newborn and adopted

children. Accordingly, the final regulations provide guidance on the application of the HIPAA

special enrollment rights to qualified beneficiaries and retain the rule in the 1987 proposed

regulations regarding the right of qualified beneficiaries to add new family members (even though

not eligible for the HIPAA special enrollment rights) to the same extent that active employees are

permitted to add new family members.

Electing COBRA Continuation Coverage

The final regulations set forth rules regarding elections of COBRA continuation coverage

by qualified beneficiaries. In general, a group health plan is required to offer a qualified

beneficiary the opportunity to elect COBRA continuation coverage at any time during the election

period. The election period begins not later than the date the qualified beneficiary would lose

coverage by reason of a qualifying event and ends not earlier than 60 days after the later of that

date or 60 days after the date on which the qualified beneficiary is provided notice of her or his

right to elect COBRA continuation coverage. For purposes of determining whether a qualified

beneficiary’s election of COBRA continuation coverage is timely, the election is deemed to be

made on the date it is sent to the employer or plan administrator. The final regulations clarify that

a qualified beneficiary need not herself or himself elect COBRA continuation coverage; that

election can be made on behalf of the qualified beneficiary by a third party (including a third party

that is not a qualified beneficiary).

Generally, the employer or plan administrator must determine when a qualifying event has

occurred, and a qualified beneficiary is not required to give notice of the event. However, a
 - 30 -

covered employee or qualified beneficiary is required to notify the plan administrator of a

qualifying event that is a divorce or legal separation of the covered employee or a dependent

child’s ceasing to be a dependent child under the plan terms. The 1987 proposed regulations

prescribe that the notification should be given to the employer or other plan administrator. The

final regulations simply require that the notice be provided to the plan administrator.

The notice must be provided within 60 days after the date of the qualifying event or the

date on which the qualified beneficiary would lose coverage because of the qualifying event,

whichever is later. If the notice is not provided, the group health plan is not required to make

COBRA continuation coverage available to the qualified beneficiary5. In the case of the covered

employee’s divorce or legal separation, a single notice sent by or on behalf of the covered

employee or any one of the qualified beneficiaries (that is, the spouse or a dependent child)

satisfies the notice requirement for all those who become qualified beneficiaries as a result of the

divorce or legal separation.

The group health plan must make COBRA continuation coverage available for the entire

election period if the qualified beneficiary elects coverage prior to the end of the period (except in

the case of a revoked waiver, as discussed below). An employer or employee organization

maintaining a group health plan using an indemnity or reimbursement arrangement can satisfy this

requirement by continuing the qualified beneficiary’s coverage during the election period or by

5
The U.S. Department of Labor has advised the IRS and Treasury that, if a covered
employee or qualified beneficiary has not been adequately informed of the obligation to provide
notice in the case of a qualifying event that is the divorce or legal separation of the covered
employee or that is a dependent child’s ceasing to be covered under the generally applicable
requirements of the plan, the covered employee’s or qualified beneficiary’s failure to provide
timely notice to the plan administrator will not affect the plan’s obligation to make continuation
coverage available upon receiving notice of such event.
 - 31 -

discontinuing the coverage until the qualified beneficiary elects COBRA and then retroactively

reinstating the qualified beneficiary’s coverage. Under the final regulations, as under the 1987

proposed regulations, the date of the qualifying event (and thus, the beginning of the maximum

coverage period) is not delayed merely because a plan provides coverage during the election

period. Claims incurred by the qualified beneficiary during the election period do not have to be

paid until COBRA continuation coverage is elected and any payment required for coverage is

made.

For a group health plan providing health services – including a health maintenance

organization or a walk-in clinic – a qualified beneficiary who has not elected and paid for COBRA

continuation coverage can be required to choose either to elect and to pay for coverage or to pay

a reasonable and customary charge for plan services (but only if the qualified beneficiary will be

reimbursed for that charge within 30 days after she or he elects COBRA continuation coverage

and makes any payment for coverage). Alternatively, the plan can treat the qualified beneficiary’s

use of the plan’s health services as a constructive election of COBRA continuation coverage and,

if it so notifies the qualified beneficiary prior to the use of services, can require payment for

COBRA continuation coverage.

The final regulations adopt the position in Communications Workers of America v.

NYNEX Corp., 898 F.2d 887 (2d Cir. 1989), regarding the responses that a group health plan

must make with respect to the rights of a qualified beneficiary during that qualified beneficiary’s

election period. Specifically, the final regulations require that the plan make a complete response

to any inquiry from a health care provider regarding the qualified beneficiary’s right to coverage

under the plan during the election period. Thus, if the qualified beneficiary has not yet elected
 - 32 -

COBRA continuation coverage but remains covered under the plan during the election period

(subject to retroactive cancellation if no election is made), the plan must so inform the health care

provider. Conversely, if the qualified beneficiary is not covered during the election period prior

to her or his election, the plan must inform the health care provider that the qualified beneficiary

does not have current coverage but will have retroactive coverage if COBRA continuation

coverage is elected. (The final regulations also include similar requirements with respect to

inquiries made by health care providers during the 30- and 45-day grace periods for paying for

COBRA continuation coverage.)

A qualified beneficiary who waives COBRA continuation coverage during the election

period can revoke the waiver before the end of the election period, but the group health plan is

not then required to provide coverage as of any date prior to the revocation. Although several

commenters objected to the rule in the 1987 proposed regulations allowing the revocation during

the election period of any previous waiver, the final regulations retain this rule. If the rule

permitted irrevocable waivers, plans might induce qualified beneficiaries to execute waivers hastily

before becoming fully informed of their rights and having the opportunity to carefully consider

whether to elect COBRA. As with the election of COBRA continuation coverage, a waiver or a

revocation of a waiver is deemed to be made on the date sent. The employer or employee

organization maintaining the group health plan is not permitted to withhold money, benefits, or

anything else to which the qualified beneficiary is entitled under any law or agreement in order to

induce a qualified beneficiary to make payment for COBRA continuation coverage or to surrender

any rights under COBRA. Any waiver of COBRA continuation coverage rights obtained through

such means will be invalid. However, the general rules for coverage during the election period
 - 33 -

apply in the case of waivers and revocations of waivers. Thus, in the case of an indemnity

arrangement, the plan can deny coverage for claims until payment for the coverage has been made

(as can also be done with those health maintenance organizations or walk-in clinics that adopt this

method for complying with the COBRA continuation coverage requirements during the election

period).

A group health plan must offer each qualified beneficiary the opportunity to make an

independent election to receive COBRA continuation coverage and, during an open enrollment

period, to choose among any options available to similarly situated active employees. This

requirement also applies to any child born to or placed for adoption with a covered employee

during a period of COBRA continuation coverage. (An election for a minor child may be made

by the child’s parent or legal guardian.) If a covered employee or the spouse of a covered

employee elects COBRA continuation coverage and the election does not specify whether the

election is for self-only coverage, the election is deemed to include an election of COBRA

continuation coverage on behalf of other qualified beneficiaries with respect to that qualifying

event.

Duration of COBRA Continuation Coverage

The 1987 proposed regulations incorporate the statutory bases for terminating COBRA

continuation coverage except the rule (added by OBRA 1989 and amended by HIPAA) that

COBRA coverage can be terminated in the month that is more than 30 days after a final

determination that a qualified beneficiary is no longer disabled. The new proposed regulations

add this statutory basis for terminating COBRA coverage, with two clarifications. First, the new

proposed regulations clarify that a determination that a qualified beneficiary is no longer disabled
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 - 39 -

continuation coverage. The final regulations modify the 1987 proposed regulations and provide

that if an event such as the death of or divorce from the covered employee would end the right of

a spouse or dependent child to receive the alternative coverage (whether during or after the first

18 months of COBRA continuation coverage), then that event is a qualifying event, regardless of

whether the alternative coverage would satisfy the requirements for COBRA continuation

coverage.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

gives certain members of the military reserves the right to up to 18 months of continuation

coverage when they are called to active duty. Many people have asked if the USERRA and

COBRA periods of continuation coverage run concurrently or consecutively. The final

regulations clarify that USERRA coverage is alternative coverage. Thus, the periods run

concurrently.

The 1987 proposed regulations include the statutory rule requiring that a conversion

option otherwise made available under the plan be made available within 180 days before the end

of the maximum coverage period. The final regulations adopt this rule without change.

Paying for COBRA Continuation Coverage

The 1987 proposed regulations identify the qualified beneficiary as the person that can be

required to pay the applicable premium. Many plans and employers have asked whether they

must accept payment on behalf of a qualified beneficiary from third parties, such as a hospital or a

new employer. Nothing in the statute requires the qualified beneficiary to pay the amount

required by the plan; the statute merely permits the plan to require that payment be made. In

order to make clear that any person may make the required payment on behalf of a qualified
 - 40 -

beneficiary, the final regulations modify the rule in the 1987 proposed regulations to refer to the

payment requirement without identifying the person who makes the payment.

The 1998 proposed regulations address the amount that a plan can require to be paid for

COBRA continuation coverage during the disability extension. This amount is 150 percent of the

applicable premium instead of the limit of 102 percent of the applicable premium that applies for

coverage outside the disability extension. The 1998 proposed regulations specifically reserve the

issue of the amount a plan could require to be paid in a case where only nondisabled family

members of the disabled individual receive COBRA continuation coverage during the disability

extension. The preamble to the 1998 proposed regulations solicited comments on this issue.

Commenters suggested that the 150 percent rate could be required if the disabled individual was

part of the coverage group but that the limit could be the 102 percent rate if only nondisabled

qualified beneficiaries were in the coverage group. The final regulations adopt this suggestion.

The 1987 proposed regulations provide that the amount required to be paid for a qualified

beneficiary’s COBRA continuation coverage must be fixed in advance for each 12-month

determination period. Many commenters suggested exceptions that could be made to this general

rule. Section 4980B(f)(4)(C) explicitly requires that the determination of the applicable premium

be made for a period of 12 months and that the determination be made before the beginning.

Therefore, the final regulations do not permit an increase in the applicable premium during the 12-

month determination period. However, the final regulations do revise the general rule from the

1987 proposed regulations to recognize the difference between the applicable premium (which

may not be increased during a 12-month determination period and which is the basis for

calculating the maximum amount that the plan can require to be paid for COBRA continuation
 - 41 -

coverage) and the maximum amount that the plan can require to be paid for COBRA continuation

coverage. Thus, the final regulations permit a plan to increase the amount it requires to be paid

for COBRA continuation coverage during a determination period to take into account the

permitted increases during the disability extension, to explicitly permit a plan that is requiring

payment of less than the maximum permissible amount to increase the amount required to be paid

during the 12-month determination period, and to permit an increase if a qualified beneficiary

changes to more expensive coverage (but also to require a reduction if the qualified beneficiary

changes to less expensive coverage).

The 1987 proposed regulations set forth the statutory requirement that qualified

beneficiaries be allowed to pay for COBRA coverage in monthly installments. The 1987

proposed regulations add that plans may allow payment to be made at other intervals, and

specifically mention quarterly or semiannual payment as examples. The final regulations adopt the

rule in the 1987 proposed regulations, but the final regulations add weekly payment as an example

to make clear that shorter than monthly installments are also permitted.

The 1987 proposed regulations provide that the first payment for COBRA continuation

coverage does not apply prospectively only. In order to make clear that a plan is not precluded

from allowing a qualified beneficiary to apply the first payment prospectively only, the final

regulations provide that qualified beneficiaries need not be given the option of having the first

payment for COBRA continuation coverage apply prospectively only.

The 1987 proposed regulations address the issue of timely payment for COBRA

continuation coverage, including an interpretation of the statutory grace periods of 45 days for the

initial payment and 30 days for all other payments. Commenters pointed out that the application
 - 42 -

of the statutory grace period rules could produce an anomalous result in some situations, such as

allowing a plan to require payment for the third month of COBRA continuation coverage earlier

than the plan could require payment for the first two months. OBRA 1989 amended the 45-day

grace period rule to prevent this, and the final regulations conform to the OBRA 1989 change.

The final regulations also clarify that payment is considered made on the date it is sent.

The final regulations also add a requirement (similar to the one described above for the

election period) relating to the response that a plan must give when a health care provider, such as

a physician, a hospital, or a pharmacy, contacts the plan to confirm coverage of a qualified

beneficiary with respect to whom the required payment has not been made for the current period

(but for whom any applicable grace period has not expired). In such a case, the plan is required to

inform the health care provider of all of the details of the qualified beneficiary’s right to coverage

during the applicable grace periods.

Many individuals have inquired about a plan’s right to discontinue their COBRA

continuation coverage because the amount of the payment made was short by an amount that is

not significant. Sometimes the error has been clearly one of transposed digits on a check tendered

for payment; in other instances, payment has been short by such a small amount that it would be

unreasonable to attribute the shortfall to anything other than mistake. The final regulations

establish a mechanism for the treatment of payments that are short by an insignificant amount.

Either the plan must treat the payment as satisfying the plan’s payment requirement or it must

notify the qualified beneficiary of the amount of the deficiency and grant the qualified beneficiary a

reasonable period of time for the deficiency to be paid. The final regulations provide that, as a

safe harbor, a period of 30 days is deemed to be a reasonable period for this purpose.
 - 43 -

Business Reorganizations

The 1987 proposed regulations provide little direct guidance on the allocation of

responsibility for COBRA continuation coverage in the event of corporate transactions, such as a

sale of stock of a subsidiary or a sale of substantial assets. Commenters on the 1987 proposed

regulations requested further guidance on corporate transactions, pointing out that the existing
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premiums paid by the employer to maintain the employee’s group health plan coverage during the

period of FMLA leave.

Any lapse of coverage under the group health plan during the period of FMLA leave and

any state or local law requiring that group health plan coverage be provided for a period longer

than that required by the FMLA are disregarded in determining whether the employee has a

qualifying event on the last day of that leave. However, the employee’s loss of coverage at the

end of FMLA leave will not constitute a qualifying event if, prior to the employee’s return from

FMLA leave, the employer has eliminated group health plan coverage for the class of employees

to which the employee would have belonged if she or he had not taken FMLA leave.

Special Analyses

It has been determined that this Treasury decision is not a significant regulatory action as

defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It is

hereby certified that the collections of information in these regulations will not have a significant

economic impact on a substantial number of small entities. This certification is based upon the

fact that employers with fewer than 20 employees are not subject to the requirements set forth in

the final regulations and, thus, the very smallest employers are not affected by the collection of

information requirements. Moreover, even for small entities with 20 or more employees who

maintain group health plans and who, thus, are subject to the requirements of COBRA, the

collections of information will not impose a substantial economic impact. The only collections of

information imposed on small entities by the regulations are (1) to notify qualified beneficiaries of

their right to elect COBRA continuation coverage upon the occurrence of a qualifying event and

(2) to notify certain qualified beneficiaries that make insignificant payment errors of those errors.
 - 50 -

With respect to this first notice requirement, it is estimated that, on average, in a given year,

qualifying events will occur with respect to approximately 10 percent of all covered employees.

Thus, an employer with 100 employees would be required to send 10 notices to qualified

beneficiaries each year. The average cost of sending such a notice is estimated to be $.50. Thus,

the total estimated cost for 10 notices is $5.00, which is the estimated annual average burden on

an employer with 100 employees. With respect to the second notice requirement, it is estimated

that, on average, at any time, the number of qualified beneficiaries is approximately equal to two

percent of an employer’s workforce. Of that number, approximately 1 in 10 will make an

insignificant error in payment each year that requires the employer to send such a notice. For

example, an employer with 100 employees will have an average of two qualified beneficiaries at

any time. Thus, the employer will receive an insignificant underpayment about once every five

years. Even if the employer chose to send out a notice each time such an insignificant

underpayment occurred, this would amount to only one notice every five years. The average cost

of sending such a notice is estimated to be $5.00, resulting in an average annual burden of $1.00

for an employer with 100 employees. Thus, the total annual cost of these two notice

requirements for an employer with 100 employees is $6.00, which is not a significant economic

impact. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5

U.S.C. chapter 6) is not required. It has also been determined that section 553(b) of the

Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Pursuant

to section 7805(f) of the Internal Revenue Code, the 1998 notice of proposed rulemaking

preceding these final regulations was submitted to the Chief Counsel for Advocacy of the Small

Business Administration for comment on its impact on small business.

 - 51 -

Drafting Information

The principal author of these regulations is Russ Weinheimer, Office of the Associate

Chief Counsel (Employee Benefits and Exempt Organizations), IRS. However, other personnel

from the IRS and Treasury Department participated in their development.

List of Subjects

26 CFR Part 54

Excise taxes, Health care, Health insurance, Pensions, Reporting and recordkeeping

requirements.

26 CFR Part 602

Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

Accordingly, 26 CFR parts 54 and 602 are amended as follows:

PART 54 – PENSION EXCISE TAXES

Paragraph 1. The authority citation for part 54 is amended by adding the following entries

in numerical order to read as follows:

Authority: 26 U.S.C. 7805 * * *

Section 54.4980B-1 also issued under 26 U.S.C. 4980B.

Section 54.4980B-2 also issued under 26 U.S.C. 4980B.

Section 54.4980B-3 also issued under 26 U.S.C. 4980B.

Section 54.4980B-4 also issued under 26 U.S.C. 4980B.

Section 54.4980B-5 also issued under 26 U.S.C. 4980B.

Section 54.4980B-6 also issued under 26 U.S.C. 4980B.

 - 52 -

Section 54.4980B-7 also issued under 26 U.S.C. 4980B.

Section 54.4980B-8 also issued under 26 U.S.C. 4980B. * * *

Par. 2. Sections 54.4980B-0, 54.4980B-1, 54.4980B-2, 54.4980B-3, 54.4980B-4,

54.4980B-5, 54.4980B-6, 54.4980B-7, and 54.4980B-8 are added to read as follows:

§54.4980B-0 Table of contents.

This section contains first a list of the section headings and then a list of the questions in

each section in §§54.4980B-1 through 54.4980B-8.

LIST OF SECTIONS

§54.4980B-1 COBRA in general.

§54.4980B-2 Plans that must comply.

§54.4980B-3 Qualified beneficiaries

 - 53 -

§54.4980B-2 Plans that must comply.

Q-1: For purposes of section 4980B, what is a group health plan?

Q-2: For purposes of section 4980B, what is the employer?

Q-3: [Reserved]

Q-4: What group health plans are subject to COBRA?

Q-5: What is a small-employer plan?

Q-6: [Reserved]

Q-7: What is the plan year?

Q-8: How do the COBRA continuation coverage requirements apply to cafeteria plans and
other flexible benefit arrangements?

Q-9: What is the effect of a group health plan’s failure to comply with the requirements of
section 4980B(f)?

Q-10: Who is liable for the excise tax if a group health plan fails to comply with the requirements
of section 4980B(f)?

§54.4980B-3 Qualified beneficiaries.

Q-1: Who is a qualified beneficiary?

Q-2: Who is an employee and who is a covered employee?

Q-3: Who are the similarly situated nonCOBRA beneficiaries?

§54.4980B-4 Qualifying events.

Q-1: What is a qualifying event?

Q-2: Are the facts surrounding a termination of employment (such as whether it was voluntary
or involuntary) relevant in determining whether the termination of employment is a
qualifying event?

§54.4980B-5 COBRA continuation coverage.

Q-1: What is COBRA continuation coverage?

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cure, mitigation, treatment, or prevention of disease, and any other undertaking for the purpose of

affecting any structure or function of the body. Health care also includes transportation primarily

for and essential to health care as described in the preceding sentence. However, health care does

not include anything that is merely beneficial to the general health of an individual, such as a

vacation. Thus, if an employer or employee organization maintains a program that furthers

general good health, but the program does not relate to the relief or alleviation of health or

medical problems and is generally accessible to and used by employees without regard to their

physical condition or state of health, that program is not considered a program that provides

health care and so is not a group health plan. For example, if an employer maintains a spa,

swimming pool, gymnasium, or other exercise/fitness program or facility that is normally

accessible to and used by employees for reasons other than relief of health or medical problems,

such a facility does not constitute a program that provides health care and thus is not a group

health plan. In contrast, if an employer maintains a drug or alcohol treatment program or a health

clinic, or any other facility or program that is intended to relieve or alleviate a physical condition

or health problem, the facility or program is considered to be the provision of health care and so is

considered a group health plan.

(c) Whether a benefit provided to employees constitutes health care is not affected by

whether the benefit is excludable from income under section 132 (relating to certain fringe

benefits). For example, if a department store provides its employees discounted prices on all

merchandise, including health care items such as drugs or eyeglasses, the mere fact that the

discounted prices also apply to health care items will not cause the program to be a plan providing

health care, so long as the discount program would normally be accessible to and used by
 - 60 -
employees without regard to health needs or physical condition. If, however, the employer

maintaining the discount program is a health clinic, so that the program is used exclusively by

employees with health or medical needs, the program is considered to be a plan providing health

care and so is considered to be a group health plan.

(d) The provision of health care at a facility that is located on the premises of an employer

or employee organization does not constitute a group health plan if –

(1) The health care consists primarily of first aid that is provided during the employer’s

working hours for treatment of a health condition, illness, or injury that occurs during those

working hours;

(2) The health care is available only to current employees; and

 - 61 -
Q-2: For purposes of section 4980B, what is the employer?

A-2: For purposes of section 4980B, employer refers to –

(a) A person for whom services are performed;

(b) Any other person that is a member of a group described in section 414(b), (c), (m), or

(o) that includes a person described in paragraph (a) of this Q&A-2; and

(c) Any successor of a person described in paragraph (a) or (b) of this Q&A-2.

Q-3: [Reserved]

A-3: [Reserved]

Q-4: What group health plans are subject to COBRA?

A-4: (a) All group health plans are subject to COBRA except group health plans

described in paragraph (b) of this Q&A-4. Group health plans described in paragraph (b) of this

Q&A-4 are referred to in §§54.4980B-1 through 54.4980B-8 as excepted from COBRA.

(b) The following group health plans are excepted from COBRA –

(1) Small-employer plans (see Q&A-5 of this section);

(2) Church plans (within the meaning of section 414(e)); and

(3) Governmental plans (within the meaning of section 414(d)).

(c) The COBRA continuation coverage requirements generally do not apply to group

health plans that are excepted from COBRA. However, a small-employer plan otherwise

excepted from COBRA is nonetheless subject to COBRA with respect to qualified beneficiaries

who experience a qualifying event during a period when the plan is not a small-employer plan (see

paragraph (g) of Q&A-5 of this section).

 - 62 -
(d) Although governmental plans are not subject to the COBRA continuation coverage

requirements, group health plans maintained by state or local governments are generally subject to

parallel continuation coverage requirements that were added by section 10003 of COBRA to the

Public Health Service Act (42 U.S.C. 300bb-1 through 300bb-8), which is administered by the

U.S. Department of Health and Human Services. Federal employees and their family members

covered under the Federal Employees Health Benefit Program are covered by generally similar,

but not parallel, temporary continuation of coverage provisions enacted by the Federal Employees

Health Benefits Amendments Act of 1988. See 5 U.S.C. 8905a.

Q-5: What is a small-employer plan?

A-5: (a) Except in the case of a multiemployer plan, a small-employer plan is a group

health plan maintained by an employer (within the meaning of Q&A-2 of this section) that

normally employed fewer than 20 employees (within the meaning of paragraph (c) of this Q&A-5)

during the preceding calendar year. In the case of a multiemployer plan, a small-employer plan is

a group health plan under which each of the employers contributing to the plan for a calendar year

normally employed fewer than 20 employees during the preceding calendar year. The rules of this

paragraph (a) are illustrated in the following example:

Example. (i) Corporation S employs 12 employees, all of whom work and reside in the
United States. S maintains a group health plan for its employees and their families. S is a wholly-
owned subsidiary of P. In the previous calendar year, the controlled group of corporations
including P and S employed more than 19 employees, although the only employees in the United
States of the controlled group that includes P and S are the 12 employees of S.

(ii) Under §1.414(b)-1 of this chapter, foreign corporations are not excluded from
membership in a controlled group of corporations. Consequently, the group health plan
maintained by S is not a small-employer plan during the current calendar year because the
controlled group including S normally employed at least 20 employees in the preceding calendar
year.
 - 63 -
(b) An employer is considered to have normally employed fewer than 20 employees

during a particular calendar year if, and only if, it had fewer than 20 employees on at least 50

percent of its typical business days during that year.

(c) All full-time and part-time common law employees of an employer are taken into

account in determining whether an employer had fewer than 20 employees; however, an individual

who is not a common law employee of the employer is not taken into account. Thus, the

following individuals are not counted as employees for purposes of this Q&A-5 even though they

are referred to as employees for all other purposes of §§54.4980B-1 through 54.4980B-8 –

(1) Self-employed individuals (within the meaning of section 401(c)(1));

(2) Independent contractors (and their employees and independent contractors); and

(3) Directors (in the case of a corporation).

(d) [Reserved]

(e) [Reserved]

(f) [Reserved]

(g) A small-employer plan is generally excepted from COBRA. If, however, a plan that

has been subject to COBRA (that is, was not a small-employer plan) becomes a small-employer

plan, the plan remains subject to COBRA for qualifying events that occurred during the period

when the plan was subject to COBRA. The rules of this paragraph (g) are illustrated by the

following examples:

Example 1. An employer maintains a group health plan. The employer employed 20

employees on more than 50 percent of its working days during 2001, and consequently the plan is
not excepted from COBRA during 2002. Employee E resigns and does not work for the
employer after January 31, 2002. Under the terms of the plan, E is no longer eligible for coverage
upon the effective date of the resignation, that is, February 1, 2002. The employer does not hire
a replacement for E. E timely elects and pays for COBRA continuation coverage. The employer
- 64 -
- 65 -
- 66 -
- 67 -
- 68 -
 - 69 -
beneficiary on or after the date of the qualifying event and a newborn or adopted child (other than

one born to or placed for adoption with a covered employee) are not qualified beneficiaries by

virtue of the marriage, birth, or placement for adoption or by virtue of the individual’s status as

the spouse or the child’s status as a dependent of the qualified beneficiary. These new family

members do not themselves become qualified beneficiaries even if they become covered under the

plan. (For situations in which a plan is required to make coverage available to new family

members of a qualified beneficiary who is receiving COBRA continuation coverage, see Q&A-5

of §54.4980B-5, paragraph (c) in Q&A-4 of §54.4980B-5, section 9801(f)(2), and §54.9801-

6T(b).)

(c) An individual is not a qualified beneficiary if, on the day before the qualifying event

referred to in paragraph (a) of this Q&A-1, the individual is covered under the group health plan

by reason of another individual’s election of COBRA continuation coverage and is not already a

qualified beneficiary by reason of a prior qualifying event.

(d) A covered employee can be a qualified beneficiary only in connection with a qualifying

event that is the termination, or reduction of hours, of the covered employee’s employment, or

that is the bankruptcy of the employer.

(e) An individual is not a qualified beneficiary if the individual’s status as a covered

employee is attributable to a period in which the individual was a nonresident alien who received

from the individual’s employer no earned income (within the meaning of section 911(d)(2)) that

constituted income from sources within the United States (within the meaning of section

861(a)(3)). If, pursuant to the preceding sentence, an individual is not a qualified beneficiary,
 - 70 -
then a spouse or dependent child of the individual is not considered a qualified beneficiary by

virtue of the relationship to the individual.

(f) A qualified beneficiary who does not elect COBRA continuation coverage in

connection with a qualifying event ceases to be a qualified beneficiary at the end of the election

period (see Q&A-1 of §54.4980B-6). Thus, for example, if such a former qualified beneficiary is

later added to a covered employee’s coverage (e.g., during an open enrollment period) and then

another qualifying event occurs with respect to the covered employee, the former qualified

beneficiary does not become a qualified beneficiary by reason of the second qualifying event. If a

covered employee who is a qualified beneficiary does not elect COBRA continuation coverage

during the election period, then any child born to or placed for adoption with the covered

employee on or after the date of the qualifying event is not a qualified beneficiary. Once a plan’s

obligation to make COBRA continuation coverage available to an individual who has been a

qualified beneficiary ceases under the rules of §54.4980B-7, the individual ceases to be a qualified

beneficiary.

(g) For purposes of §§54.4980B-1 through 54.4980B-8, placement for adoption or being

placed for adoption means the assumption and retention by the covered employee of a legal

obligation for total or partial support of a child in anticipation of the adoption of the child. The

child’s placement for adoption with the covered employee terminates upon the termination of the

legal obligation for total or partial support. A child who is immediately adopted by the covered

employee without a preceding placement for adoption is considered to be placed for adoption on

the date of the adoption.

(h) The rules of this Q&A-1 are illustrated by the following examples:
 - 71 -
Example 1. (i) B is a single employee who voluntarily terminates employment and elects
COBRA continuation coverage under a group health plan. To comply with the requirements of
section 9801(f) and §54.9801-6T(b), the plan permits a covered employee who marries to have
her or his spouse covered under the plan. One month after electing COBRA continuation
coverage, B marries and chooses to have B’s spouse covered under the plan.

(ii) B’s spouse is not a qualified beneficiary. Thus, if B dies during the period of COBRA
continuation coverage, the plan does not have to offer B’s surviving spouse an opportunity to
elect COBRA continuation coverage.

Example 2. (i) C is a married employee who terminates employment. C elects COBRA

continuation coverage for C but not C’s spouse, and C’s spouse declines to elect such coverage.
C’s spouse thus ceases to be a qualified beneficiary. At the next open enrollment period, C adds
the spouse as a beneficiary under the plan.

(ii) The addition of the spouse during the open enrollment period does not make the
spouse a qualified beneficiary. The plan thus will not have to offer the spouse an opportunity to
elect COBRA continuation coverage upon a later divorce from or death of C.

Example 3. (i) Under the terms of a group health plan, a covered employee’s child, upon
attaining age 19, ceases to be a dependent eligible for coverage.

(ii) At that time, the child must be offered an opportunity to elect COBRA continuation
coverage. If the child elects COBRA continuation coverage, the child marries during the period
of the COBRA continuation coverage, and the child’s spouse becomes covered under the group
health plan, the child’s spouse is not a qualified beneficiary.

Example 4. (i) D is a single employee who, upon retirement, is given the opportunity to
elect COBRA continuation coverage but declines it in favor of an alternative offer of 12 months
of employer-paid retiree health benefits. At the end of the election period, D ceases to be a
qualified beneficiary and will not have to be given another opportunity to elect COBRA
continuation coverage (at the end of those 12 months or at any other time). D marries E during
the period of retiree health coverage and, under the terms of that coverage, E becomes covered
under the plan.

(ii) If a divorce from or death of D will result in E’s losing coverage, E will be a qualified
beneficiary because E’s coverage under the plan on the day before the qualifying event (that is, the
divorce or death) will have been by reason of D’s acceptance of 12 months of employer-paid
coverage after the prior qualifying event (D’s retirement) rather than by reason of an election of
COBRA continuation coverage.

Example 5. (i) The facts are the same as in Example 4, except that, under the terms of
the plan, the divorce or death does not cause E to lose coverage so that E continues to be covered
for the balance of the original 12-month period.
 - 72 -
(ii) E does not have to be allowed to elect COBRA continuation coverage because the
loss of coverage at the end of the 12-month period is not caused by the divorce or death, and thus
the divorce or death does not constitute a qualifying event. See Q&A-1 of §54.4980B-4.

Q-2: Who is an employee and who is a covered employee?

A-2: (a)(1) For purposes of §§54.4980B-1 through 54.4980B-8 (except for purposes of

Q&A-5 in §54.4980B-2, relating to the exception from COBRA for plans maintained by an

employer with fewer than 20 employees), an employee is any individual who is eligible to be

covered under a group health plan by virtue of the performance of services for the employer

maintaining the plan or by virtue of membership in the employee organization maintaining the

plan. Thus, for purposes of §§54.4980B-1 through 54.4980B-8 (except for purposes of Q&A-5

in §54.4980B-2), the following individuals are employees if their relationship to the employer

maintaining the plan makes them eligible to be covered under the plan –

(i) Self-employed individuals (within the meaning of section 401(c)(1));

(ii) Independent contractors (and their employees and independent contractors); and

(iii) Directors (in the case of a corporation).

(2) Similarly, whenever reference is made in §§54.4980B-1 through 54.4980B-8 (except

in Q&A-5 of §54.4980B-2) to an employment relationship (such as by referring to the termination

of employment of an employee or to an employee’s being employed by an employer), the

reference includes the relationship of those individuals who are employees within the meaning of

this paragraph (a). See paragraph (c) in Q&A-5 of §54.4980B-2 for a narrower meaning of

employee solely for purposes of Q&A-5 of §54.4980B-2.

(b) For purposes of §§54.4980B-1 through 54.4980B-8, a covered employee is any

individual who is (or was) provided coverage under a group health plan (other than a plan that is
 - 73 -
excepted from COBRA on the date of the qualifying event; see Q&A-4 of §54.4980B-2) by virtue

of being or having been an employee. For example, a retiree or former employee who is covered

by a group health plan is a covered employee if the coverage results in whole or in part from her

or his previous employment. An employee (or former employee) who is merely eligible for

coverage under a group health plan is generally not a covered employee if the employee (or

former employee) is not actually covered under the plan. In general, the reason for the

employee’s (or former employee’s) lack of actual coverage (such as having declined participation

in the plan or having failed to satisfy the plan’s conditions for participation) is not relevant for this

purpose. However, if the employee (or former employee) is denied or not offered coverage under

circumstances in which the denial or failure to offer constitutes a violation of applicable law (such

as the Americans with Disabilities Act, 42 U.S.C. 12101 through 12213, the special enrollment

rules of section 9801, or the requirements of section 9802 prohibiting discrimination in eligibility

to enroll in a group health plan based on health status), then, for purposes of §§54.4980B-1

through 54.4980B-8, the employee (or former employee) will be considered to have had the

coverage that was wrongfully denied or not offered.

Q-3: Who are the similarly situated nonCOBRA beneficiaries?

A-3: For purposes of §§54.4980B-1 through 54.4980B-8, similarly situated nonCOBRA

beneficiaries means the group of covered employees, spouses of covered employees, or dependent

children of covered employees receiving coverage under a group health plan maintained by the

employer or employee organization who are receiving that coverage for a reason other than the

rights provided under the COBRA continuation coverage requirements and who, based on all of
 - 74 -
the facts and circumstances, are most similarly situated to the situation of the qualified beneficiary

immediately before the qualifying event.

§54.4980B-4 Qualifying events.

The determination of what constitutes a qualifying event is addressed in the following

questions-and-answers:

Q-1: What is a qualifying event?

A-1: (a) A qualifying event is an event that satisfies paragraphs (b), (c), and (d) of this

Q&A-1. Paragraph (e) of this Q&A-1 further explains a reduction of hours of employment,

paragraph (f) of this Q&A-1 describes the treatment of children born to or placed for adoption

with a covered employee during a period of COBRA continuation coverage, and paragraph (g) of

this Q&A-1 contains examples.

(b) An event satisfies this paragraph (b) if the event is any of the following –

(1) The death of a covered employee;

(2) The termination (other than by reason of the employee’s gross misconduct), or

reduction of hours, of a covered employee’s employment;

(3) The divorce or legal separation of a covered employee from the employee’s spouse;

(4) A covered employee’s becoming entitled to Medicare benefits under Title XVIII of

the Social Security Act (42 U.S.C. 1395-1395ggg);

(5) A dependent child’s ceasing to be a dependent child of a covered employee under the

generally applicable requirements of the plan; or

(6) A proceeding in bankruptcy under Title 11 of the United States Code with respect to

an employer from whose employment a covered employee retired at any time.

 - 75 -
(c) An event satisfies this paragraph (c) if, under the terms of the group health plan, the

event causes the covered employee, or the spouse or a dependent child of the covered employee,

to lose coverage under the plan. For this purpose, to lose coverage means to cease to be covered

under the same terms and conditions as in effect immediately before the qualifying event. Any

increase in the premium or contribution that must be paid by a covered employee (or the spouse

or dependent child of a covered employee) for coverage under a group health plan that results

from the occurrence of one of the events listed in paragraph (b) of this Q&A-1 is a loss of

coverage. In the case of an event that is the bankruptcy of the employer, lose coverage also

means any substantial elimination of coverage under the plan, occurring within 12 months before

or after the date the bankruptcy proceeding commences, for a covered employee who had retired

on or before the date of the substantial elimination of group health plan coverage or for any

spouse, surviving spouse, or dependent child of such a covered employee if, on the day before the

bankruptcy qualifying event, the spouse, surviving spouse, or dependent child is a beneficiary

under the plan. For purposes of this paragraph (c), a loss of coverage need not occur immediately

after the event, so long as the loss of coverage occurs before the end of the maximum coverage

period (see Q&A-1 and Q&A-6 of §54.4980B-7). However, if neither the covered employee nor

the spouse or a dependent child of the covered employee loses coverage before the end of what

would be the maximum coverage period, the event does not satisfy this paragraph (c). If

coverage is reduced or eliminated in anticipation of an event (for example, an employer’s

eliminating an employee’s coverage in anticipation of the termination of the employee’s

employment, or an employee’s eliminating the coverage of the employee’s spouse in anticipation

 - 76 -
of a divorce or legal separation), the reduction or elimination is disregarded in determining

whether the event causes a loss of coverage.

(d) An event satisfies this paragraph (d) if it occurs while the plan is subject to COBRA.

Thus, an event will not satisfy this paragraph (d) if it occurs while the plan is excepted from

COBRA (see Q&A-4 of §54.4980B-2). Even if the plan later becomes subject to COBRA, it is

not required to make COBRA continuation coverage available to anyone whose coverage ends as

a result of an event during a year in which the plan is excepted from COBRA. For example, if a

group health plan is excepted from COBRA as a small-employer plan during the year 2001 (see

Q&A-5 of §54.4980B-2) and an employee terminates employment on December 31, 2001, the

termination is not a qualifying event and the plan is not required to permit the employee to elect

COBRA continuation coverage. This is the case even if the plan ceases to be a small-employer

plan as of January 1, 2002. Also, the same result will follow even if the employee is given three

months of coverage beyond December 31 (that is, through March of 2002), because there will be

no qualifying event as of the termination of coverage in March. However, if the employee’s

spouse is initially provided with the three-month coverage through March 2002, but the spouse

divorces the employee before the end of the three months and loses coverage as a result of the

divorce, the divorce will constitute a qualifying event during 2002 and so entitle the spouse to

elect COBRA continuation coverage. See Q&A-7 of §54.4980B-7 regarding the maximum

coverage period in such a case.

(e) A reduction of hours of a covered employee’s employment occurs whenever there is a

decrease in the hours that a covered employee is required to work or actually works, but only if

the decrease is not accompanied by an immediate termination of employment. This is true

 - 77 -
regardless of whether the covered employee continues to perform services following the reduction

of hours of employment. For example, an absence from work due to disability, a temporary

layoff, or any other reason is a reduction of hours of a covered employee’s employment if there is

not an immediate termination of employment. If a group health plan measures eligibility for the

coverage of employees by the number of hours worked in a given time period, such as the

preceding month or quarter, and an employee covered under the plan fails to work the minimum

number of hours during that time period, the failure to work the minimum number of required

hours is a reduction of hours of that covered employee’s employment.

(f) The qualifying event of a qualified beneficiary who is a child born to or placed for

adoption with a covered employee during a period of COBRA continuation coverage is the

qualifying event giving rise to the period of COBRA continuation coverage during which the child

is born or placed for adoption. If a second qualifying event has occurred before the child is born

or placed for adoption (such as the death of the covered employee), then the second qualifying

event also applies to the newborn or adopted child. See Q&A-6 of §54.4980B-7.

(g) The rules of this Q&A-1 are illustrated by the following examples, in each of which

the group health plan is subject to COBRA:

Example 1. (i) An employee who is covered by a group health plan terminates

employment (other than by reason of the employee’s gross misconduct) and, beginning with the
day after the last day of employment, is given 3 months of employer-paid coverage under the
same terms and conditions as before that date. At the end of the three months, the coverage
terminates.

(ii) The loss of coverage at the end of the three months results from the termination of
employment and, thus, the termination of employment is a qualifying event.

Example 2. (i) An employee who is covered by a group health plan retires (which is a
termination of employment other than by reason of the employee’s gross misconduct) and, upon
 - 78 -
retirement, is required to pay an increased amount for the same group health coverage that the
employee had before retirement.

(ii) The increase in the premium or contribution required for coverage is a loss of
coverage under paragraph (c) of this Q&A-1 and, thus, the retirement is a qualifying event.

Example 3. (i) An employee and the employee’s spouse are covered under an employer’s
group health plan. The employee retires and is given identical coverage for life. However, the
plan provides that the spousal coverage will not be continued beyond six months unless a higher
premium for the spouse is paid to the plan.

(ii) The requirement for the spouse to pay a higher premium at the end of the six months is
a loss of coverage under paragraph (c) of this Q&A-1. Thus, the retirement is a qualifying event
and the spouse must be given an opportunity to elect COBRA continuation coverage.

Example 4. (i) F is a covered employee who is married to G, and both are covered under
a group health plan maintained by F’s employer. F and G are divorced. Under the terms of the
plan, the divorce causes G to lose coverage. The divorce is a qualifying event, and G elects
COBRA continuation coverage, remarries during the period of COBRA continuation coverage,
and G’s new spouse becomes covered under the plan. (See Q&A-5 in §54.4980B-5, paragraph
(c) in Q&A-4 of §54.4980B-5, section 9801(f)(2), and §54.9801-6T(b).) G dies. Under the
terms of the plan, the death causes G’s new spouse to lose coverage under the plan.

(ii) G’s death is not a qualifying event because G is not a covered employee.

Example 5. (i) An employer maintains a group health plan for both active employees and
retired employees (and their families). The coverage for active employees and retired employees
is identical, and the employer does not require retirees to pay more for coverage than active
employees. The plan does not make COBRA continuation coverage available when an employee
retires (and is not required to because the retired employee has not lost coverage under the plan).
The employer amends the plan to eliminate coverage for retired employees effective January 1,
2002. On that date, several retired employees (and their spouses and dependent children) have
been covered under the plan since their retirement for less than the maximum coverage period that
would apply to them in connection with their retirement.

(ii) The elimination of retiree coverage under these circumstances is a deferred loss of
coverage for those retirees (and their spouses and dependent children) under paragraph (c) of this
Q&A-1 and, thus, the retirement is a qualifying event. The plan must make COBRA continuation
coverage available to them for the balance of the maximum coverage period that applies to them
in connection with the retirement.
 - 79 -
Q-2: Are the facts surrounding a termination of employment (such as whether it was

voluntary or involuntary) relevant in determining whether the termination of employment is a

qualifying event?

A-2: Apart from facts constituting gross misconduct, the facts surrounding the

termination or reduction of hours are irrelevant in determining whether a qualifying event has

occurred. Thus, it does not matter whether the employee voluntarily terminated or was

discharged. For example, a strike or a lockout is a termination or reduction of hours that

constitutes a qualifying event if the strike or lockout results in a loss of coverage as described in

paragraph (c) of Q&A-1 of this section. Similarly, a layoff that results in such a loss of coverage

is a qualifying event.

§54.4980B-5 COBRA continuation coverage.

The following questions-and-answers address the requirements for coverage to constitute

COBRA continuation coverage:

Q-1: What is COBRA continuation coverage?

A-1: (a) If a qualifying event occurs, each qualified beneficiary (other than a qualified

beneficiary for whom the qualifying event will not result in any immediate or deferred loss of

coverage) must be offered an opportunity to elect to receive the group health plan coverage that

is provided to similarly situated nonCOBRA beneficiaries (ordinarily, the same coverage that the

qualified beneficiary had on the day before the qualifying event). See Q&A-3 of §54.4980B-3 for
 - 80 -
way. If the continuation coverage offered differs in any way from the coverage made available to

similarly situated nonCOBRA beneficiaries, the coverage offered does not constitute COBRA

continuation coverage and the group health plan is not in compliance with COBRA unless other

coverage that does constitute COBRA continuation coverage is also offered. Any elimination or

reduction of coverage in anticipation of an event described in paragraph (b) of Q&A-1 of

§54.4980B-4 is disregarded for purposes of this Q&A-1 and for purposes of any other reference

in §§54.4980B-1 through 54.4980B-8 to coverage in effect immediately before (or on the day

before) a qualifying event. COBRA continuation coverage must not be conditioned upon, or

discriminate on the basis of lack of, evidence of insurability.

(b) In the case of a qualified beneficiary who is a child born to or placed for adoption with

a covered employee during a period of COBRA continuation coverage, the child is generally

entitled to elect immediately to have the same coverage that dependent children of active

employees receive under the benefit packages under which the covered employee has coverage at

the time of the birth or placement for adoption. Such a child would be entitled to elect coverage

different from that elected by the covered employee during the next available open enrollment

period under the plan. See Q&A-4 of this section.

Q-2: What deductibles apply if COBRA continuation coverage is elected?

A-2: (a) Qualified beneficiaries electing COBRA continuation coverage generally are

subject to the same deductibles as similarly situated nonCOBRA beneficiaries. If a qualified

beneficiary’s COBRA continuation coverage begins before the end of a period prescribed for

accumulating amounts toward deductibles, the qualified beneficiary must retain credit for

expenses incurred toward those deductibles before the beginning of COBRA continuation
 - 81 -
coverage as though the qualifying event had not occurred. The specific application of this rule

depends on the type of deductible, as set forth in paragraphs (b) through (d) of this Q&A-2.

Special rules are set forth in paragraph (e) of this Q&A-2, and examples appear in paragraph (f)

of this Q&A-2.

(b) If a deductible is computed separately for each individual receiving coverage under the

plan, each individual’s remaining deductible amount (if any) on the date COBRA continuation

coverage begins is equal to that individual’s remaining deductible amount immediately before that

date.

(c) If a deductible is computed on a family basis, the remaining deductible for the family

on the date that COBRA continuation coverage begins depends on the members of the family

electing COBRA continuation coverage. In computing the family deductible that remains on the

date COBRA continuation coverage begins, only the expenses of those family members receiving

COBRA continuation coverage need be taken into account. If the qualifying event results in there

being more than one family unit (for example, because of a divorce), the family deductible may be

computed separately for each resulting family unit based on the members in each unit. These rules

apply regardless of whether the plan provides that the family deductible is an alternative to

individual deductibles or an additional requirement.

(d) Deductibles that are not described in paragraph (b) or (c) of this Q&A-2 must be

treated in a manner consistent with the principles set forth in those paragraphs.

(e) If a deductible is computed on the basis of a covered employee’s compensation

instead of being a fixed dollar amount and the employee remains employed during the period of

COBRA continuation coverage, the plan is permitted to choose whether to apply the deductible
 - 82 -
by treating the employee’s compensation as continuing without change for the duration of the

COBRA continuation coverage at the level that was used to compute the deductible in effect

immediately before the COBRA continuation coverage began, or to apply the deductible by taking

the employee’s actual compensation into account. In applying a deductible that is computed on

the basis of the covered employee’s compensation instead of being a fixed dollar amount, for

periods of COBRA continuation coverage in which the employee is not employed by the

employer, the plan is required to compute the deductible by treating the employee’s compensation

as continuing without change for the duration of the COBRA continuation coverage either at the

level that was used to compute the deductible in effect immediately before the COBRA

continuation coverage began or at the level that was used to compute the deductible in effect

immediately before the employee’s employment was terminated.

(f) The rules of this Q&A-2 are illustrated by the following examples; in each example,

deductibles under the plan are determined on a calendar year basis:

Example 1. (i) A group health plan applies a separate $100 annual deductible to each
individual it covers. The plan provides that the spouse and dependent children of a covered
employee will lose coverage on the last day of the month after the month of the covered
employee’s death. A covered employee dies on June 11, 2001. The spouse and the two
dependent children elect COBRA continuation coverage, which will begin on August 1, 2001. As
of July 31, 2001, the spouse has incurred $80 of covered expenses, the older child has incurred no
covered expenses, and the younger one has incurred $120 of covered expenses (and therefore has
already satisfied the deductible).

(ii) At the beginning of COBRA continuation coverage on August 1, the spouse has a
remaining deductible of $20, the older child still has the full $100 deductible, and the younger one
has no further deductible.

Example 2. (i) A group health plan applies a separate $200 annual deductible to each
individual it covers, except that each family member is treated as having satisfied the individual
deductible once the family has incurred $500 of covered expenses during the year. The plan
provides that upon the divorce of a covered employee, coverage will end immediately for the
employee’s spouse and any children who do not remain in the employee’s custody. A covered
 - 83 -
employee with four dependent children is divorced, the spouse obtains custody of the two oldest
children, and the spouse and those children all elect COBRA continuation coverage to begin
immediately. The family had accumulated $420 of covered expenses before the divorce, as
follows: $70 by each parent, $200 by the oldest child, $80 by the youngest child, and none by the
other two children.

(ii) The resulting family consisting of the spouse and the two oldest children accumulated
a total of $270 of covered expenses, and thus the remaining deductible for that family could be as
high as $230 (because the plan would not have to count the incurred expenses of the covered
employee and the youngest child). The remaining deductible for the resulting family consisting of
the covered employee and the two youngest children is not subject to the rules of this Q&A-2
because their coverage is not COBRA continuation coverage.

Example 3. Each year a group health plan pays 70 percent of the cost of an individual’s
psychotherapy after that individual’s first three visits during the year. A qualified beneficiary
whose election of COBRA continuation coverage takes effect beginning August 1, 2001 and who
has already made two visits as of that date need only pay for one more visit before the plan must
begin to pay 70 percent of the cost of the remaining visits during 2001.

Example 4. (i) A group health plan has a $250 annual deductible per covered individual.
The plan provides that if the deductible is not satisfied in a particular year, expenses incurred
during October through December of that year are credited toward satisfaction of the deductible
in the next year. A qualified beneficiary who has incurred covered expenses of $150 from January
through September of 2001 and $40 during October elects COBRA continuation coverage
beginning November 1, 2001.

(ii) The remaining deductible amount for this qualified beneficiary is $60 at the beginning
of the COBRA continuation coverage. If this individual incurs covered expenses of $50 in
November and December of 2001 combined (so that the $250 deductible for 2001 is not
satisfied), the $90 incurred from October through December of 2001 are credited toward
satisfaction of the deductible amount for 2002.

Q-3: How do a plan’s limits apply to COBRA continuation coverage?

A-3: (a) Limits are treated in the same way as deductibles (see Q&A-2 of this section).

This rule applies both to limits on plan benefits (such as a maximum number of hospital days or

dollar amount of reimbursable expenses) and limits on out-of-pocket expenses (such as a limit on

copayments, a limit on deductibles plus copayments, or a catastrophic limit). This rule applies
 - 84 -
equally to annual and lifetime limits and applies equally to limits on specific benefits and limits on

benefits in the aggregate under the plan.

(b) The rule of this Q&A-3 is illustrated by the following examples; in each example limits

are determined on a calendar year basis:

Example 1. (i) A group health plan pays for a maximum of 150 days of hospital
confinement per individual per year. A covered employee who has had 20 days of hospital
confinement as of May 1, 2001 terminates employment and elects COBRA continuation coverage
as of that date.

(ii) During the remainder of the year 2001 the plan need only pay for a maximum of 130
days of hospital confinement for this individual.

Example 2. (i) A group health plan reimburses a maximum of $20,000 of covered

expenses per family per year, and the same $20,000 limit applies to unmarried covered employees.
A covered employee and spouse who have no children divorce on May 1, 2001, and the spouse
elects COBRA continuation coverage as of that date. In 2001, the employee had incurred $5,000
of expenses and the spouse had incurred $8,000 before May 1.

(ii) The plan can limit its reimbursement of the amount of expenses incurred by the spouse
on and after May 1 for the remainder of the year to $12,000 ($20,000 – $8,000 = $12,000). The
remaining limit for the employee is not subject to the rules of this Q&A-3 because the employee’s
coverage is not COBRA continuation coverage.

Example 3. (i) A group health plan pays for 80 percent of covered expenses after
satisfaction of a $100-per-individual deductible, and the plan pays for 100 percent of covered
expenses after a family has incurred out-of-pocket costs of $2,000. The plan provides that upon
the divorce of a covered employee, coverage will end immediately for the employee’s spouse and
any children who do not remain in the employee’s custody. An employee and spouse with three
dependent children divorce on June 1, 2001, and one of the children remains with the employee.
The spouse elects COBRA continuation coverage as of that date for the spouse and the other two
children. During January through May of 2001, the spouse incurred $600 of covered expenses
and each of the two children in the spouse’s custody after the divorce incurred covered expenses
of $1,100. This resulted in total out-of-pocket costs for these three individuals of $800 ($300
total for the three deductibles, plus $500 for 20 percent of the other $2,500 in incurred expenses
[$600 + $1,100 + $1,100 = $2,800; $2,800 - $300 = $2,500]).

(ii) For the remainder of 2001, the resulting family consisting of the spouse and two
children has an out-of-pocket limit of $1,200 ($2,000 – $800 = $1,200) . The remaining out-of-
pocket limit for the resulting family consisting of the employee and one child is not subject to the
rules of this Q&A-3 because their coverage is not COBRA continuation coverage.
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coverage is a timely election if it is made during the election period. The election period must

begin not later than the date the qualified beneficiary would lose coverage on account of the

qualifying event. (See paragraph (c) of Q&A-1 of §54.4980B-4 for the meaning of lose

coverage.) The election period must not end before the date that is 60 days after the later of –

(1) The date the qualified beneficiary would lose coverage on account of the qualifying

event; or

(2) The date notice is provided to the qualified beneficiary of her or his right to elect

COBRA continuation coverage.

(b) An election is considered to be made on the date it is sent to the plan administrator.

(c) The rules of this Q&A-1 are illustrated by the following example:

Example. (i) An unmarried employee without children who is receiving employer-paid

coverage under a group health plan voluntarily terminates employment on June 1, 2001. The
employee is not disabled at the time of the termination of employment nor at any time thereafter,
and the plan does not provide for the extension of the required periods (as is permitted under
section 4980B(f)(8)).

(ii) Case 1: If the plan provides that the employer-paid coverage ends immediately upon
the termination of employment, the election period must begin not later than June 1, 2001, and
must not end earlier than July 31, 2001. If notice of the right to elect COBRA continuation
coverage is not provided to the employee until June 15, 2001, the election period must not end
earlier than August 14, 2001.

(iii) Case 2: If the plan provides that the employer-paid coverage does not end until 6
months after the termination of employment, the employee does not lose coverage until December
1, 2001. The election period can therefore begin as late as December 1, 2001, and must not end
before January 30, 2002.

(iv) Case 3: If employer-paid coverage for 6 months after the termination of employment
is offered only to those qualified beneficiaries who waive COBRA continuation coverage, the
employee loses coverage on June 1, 2001, so the election period is the same as in Case 1. The
difference between Case 2 and Case 3 is that in Case 2 the employee can receive 6 months of
employer-paid coverage and then elect to pay for up to an additional 12 months of COBRA
continuation coverage, while in Case 3 the employee must choose between 6 months of employer-
paid coverage and paying for up to 18 months of COBRA continuation coverage. In all three
 - 90 -
cases, COBRA continuation coverage need not be provided for more than 18 months after the
termination of employment, and in certain circumstances might be provided for a shorter period
(see Q&A-1 of §54.4980B-7).

Q-2: Is a covered employee or qualified beneficiary responsible for informing the plan

administrator of the occurrence of a qualifying event?

A-2: (a) In general, the employer or plan administrator must determine when a qualifying

event has occurred. However, each covered employee or qualified beneficiary is responsible for

notifying the plan administrator of the occurrence of a qualifying event that is either a dependent

child’s ceasing to be a dependent child under the generally applicable requirements of the plan or a

divorce or legal separation of a covered employee. The group health plan is not required to offer

the qualified beneficiary an opportunity to elect COBRA continuation coverage if the notice is not

provided to the plan administrator within 60 days after the later of –

(1) The date of the qualifying event; or

(2) The date the qualified beneficiary would lose coverage on account of the qualifying

event.

(b) For purposes of this Q&A-2, if more than one qualified beneficiary would lose

coverage on account of a divorce or legal separation of a covered employee, a timely notice of the

divorce or legal separation that is provided by the covered employee or any one of those qualified

beneficiaries will be sufficient to preserve the election rights of all of the qualified beneficiaries.

Q-3: During the election period and before the qualified beneficiary has made an election,

must coverage be provided?

A-3: (a) In general, each qualified beneficiary has until 60 days after the later of the date

the qualifying event would cause her or him to lose coverage or the date notice is provided to the
 - 91 -
qualified beneficiary of her or his right to elect COBRA continuation coverage to decide whether

to elect COBRA continuation coverage. If the election is made during that period, coverage must

be provided from the date that coverage would otherwise have been lost (but see Q&A-4 of this

section). This can be accomplished as described in paragraph (b) or (c) of this Q&A-3.

(b) In the case of an indemnity or reimbursement arrangement, the employer or employee

organization can provide for plan coverage during the election period or, if the plan allows

retroactive reinstatement, the employer or employee organization can terminate the coverage of

the qualified beneficiary and reinstate her or him when the election is made. Claims incurred by a

qualified beneficiary during the election period do not have to be paid before the election (and, if

applicable, payment for the coverage) is made. If a provider of health care (such as a physician,

hospital, or pharmacy) contacts the plan to confirm coverage of a qualified beneficiary during the

election period, the plan must give a complete response to the health care provider about the

qualified beneficiary’s COBRA continuation coverage rights during the election period. For

example, if the plan provides coverage during the election period but cancels coverage

retroactively if COBRA continuation coverage is not elected, then the plan must inform a provider

that a qualified beneficiary for whom coverage has not been elected is covered but that the

coverage is subject to retroactive termination. Similarly, if the plan cancels coverage but then

retroactively reinstates it once COBRA continuation coverage is elected, then the plan must

inform the provider that the qualified beneficiary currently does not have coverage but will have

coverage retroactively to the date coverage was lost if COBRA continuation coverage is elected.

(See paragraph (c) of Q&A-5 in §54.4980B-8 for similar rules that a plan must follow in

confirming coverage during a period when the plan has not received payment but that is still
 - 92 -
within the grace period for a qualified beneficiary for whom COBRA continuation coverage has

been elected.)

(c)(1) In the case of a group health plan that provides health services (such as a health

maintenance organization or a walk-in clinic), the plan can require with respect to a qualified

beneficiary who has not elected and paid for COBRA continuation coverage that the qualified

beneficiary choose between –

(i) Electing and paying for the coverage; or

(ii) Paying the reasonable and customary charge for the plan’s services, but only if a

qualified beneficiary who chooses to pay for the services will be reimbursed for that payment

within 30 days after the election of COBRA continuation coverage (and, if applicable, the

payment of any balance due for the coverage).

(2) In the alternative, the plan can provide continued coverage and treat the qualified

beneficiary’s use of the facility as a constructive election. In such a case, the qualified beneficiary

is obligated to pay any applicable charge for the coverage, but only if the qualified beneficiary is

informed that use of the facility will be a constructive election before using the facility.

Q-4: Is a waiver before the end of the election period effective to end a qualified

beneficiary’s election rights?

A-4: If, during the election period, a qualified beneficiary waives COBRA continuation

coverage, the waiver can be revoked at any time before the end of the election period.

Revocation of the waiver is an election of COBRA continuation coverage. However, if a waiver

of COBRA continuation coverage is later revoked, coverage need not be provided retroactively

(that is, from the date of the loss of coverage until the waiver is revoked). Waivers and
 - 93 -
revocations of waivers are considered made on the date they are sent to the employer, employee

organization, or plan administrator, as applicable.

Q-5: Can an employer or employee organization withhold money or other benefits owed

to a qualified beneficiary until the qualified beneficiary either waives COBRA continuation

coverage, elects and pays for such coverage, or allows the election period to expire?

A-5: No. An employer, and an employee organization, must not withhold anything to

which a qualified beneficiary is otherwise entitled (by operation of law or other agreement) in

order to compel payment for COBRA continuation coverage or to coerce the qualified beneficiary

to give up rights to COBRA continuation coverage (including the right to use the full election

period to decide whether to elect such coverage). Such a withholding constitutes a failure to

comply with the COBRA continuation coverage requirements. Furthermore, any purported

waiver obtained by means of such a withholding is invalid.

Q-6: Can each qualified beneficiary make an independent election under COBRA?

A-6: Yes. Each qualified beneficiary (including a child who is born to or placed for

adoption with a covered employee during a period of COBRA continuation coverage) must be

offered the opportunity to make an independent election to receive COBRA continuation

coverage. If the plan allows similarly situated active employees with respect to whom a

qualifying event has not occurred to choose among several options during an open enrollment

period (for example, to switch to another group health plan or to another benefit package under

the same group health plan), then each qualified beneficiary must also be offered an independent

election to choose during an open enrollment period among the options made available to

similarly situated active employees with respect to whom a qualifying event has not occurred. If a
- 94 -
 - 95 -
(ii) If an employee’s family is receiving coverage under the group health plan when a
qualifying event occurs, each of the qualified beneficiaries must be offered an opportunity to elect
COBRA continuation coverage, regardless of how that qualified beneficiary’s coverage was paid
for before the qualifying event.

§54.4980B-7 Duration of COBRA continuation coverage.

The following questions-and-answers address the duration of COBRA continuation

coverage:

Q-1: How long must COBRA continuation coverage be made available to a qualified

beneficiary?

A-1: (a) Except for an interruption of coverage in connection with a waiver, as described

in Q&A-4 of §54.4980B-6, COBRA continuation coverage that has been elected for a qualified

beneficiary must extend for at least the period beginning on the date of the qualifying event and

ending not before the earliest of the following dates –

(1) The last day of the maximum required period under section 4980B(f)(2)(B)(i) (the

maximum coverage period) and, if applicable, section 4980B(f)(8) (relating to the optional

extension of required periods in a case where coverage is lost after the date of, instead of on the

date of, the qualifying event);

(2) The first day for which timely payment is not made to the plan with respect to the

qualified beneficiary (see Q&A-5 in §54.4980B-8);

(3) The date upon which the employer or employee organization ceases to provide any

group health plan (including successor plans) to any employee;

(4) The date, after the date of the election, upon which the qualified beneficiary first

becomes covered under any other group health plan, as described in Q&A-2 of this section; and
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- 97 -
- 98 -
 - 99 -
A-4: [Reserved]

Q-5: How does a qualified beneficiary become entitled to a disability extension?

A-5: (a) A qualified beneficiary becomes entitled to a disability extension if the

requirements of paragraphs (b), (c), and (d) of this Q&A-5 are satisfied with respect to the

qualified beneficiary. If the disability extension applies with respect to a qualifying event, it

applies with respect to each qualified beneficiary entitled to COBRA continuation coverage

because of that qualifying event. Thus, for example, the 29-month maximum coverage period

applies to each qualified beneficiary who is not disabled as well as to the qualified beneficiary who

is disabled, and it applies independently with respect to each of the qualified beneficiaries. See

Q&A-1 in §54.4980B-8, which permits a plan to require payment of an increased amount during

the disability extension.

(b) The requirement of this paragraph (b) is satisfied if a qualifying event occurs that is a

termination, or reduction of hours, of a covered employee’s employment.

(c) The requirement of this paragraph (c) is satisfied if an individual (whether or not the

covered employee) who is a qualified beneficiary in connection with the qualifying event described

in paragraph (b) of this Q&A-5 is determined under Title II or XVI of the Social Security Act (42

U.S.C. 401-433 or 1381-1385) to have been disabled at any time during the first 60 days of

COBRA continuation coverage. For this purpose, the period of the first 60 days of COBRA

continuation coverage is measured from the date of the qualifying event described in paragraph
 - 100 -
COBRA continuation coverage is measured from the date on which the coverage would be lost).

However, in the case of a qualified beneficiary who is a child born to or placed for adoption with

a covered employee during a period of COBRA continuation coverage, the period of the first 60

days of COBRA continuation coverage is measured from the date of birth or placement for

adoption. For purposes of this paragraph (c), an individual is determined to be disabled within the

first 60 days of COBRA continuation coverage if the individual has been determined under Title II

or XVI of the Social Security Act to have been disabled before the first day of COBRA

continuation coverage and has not been determined to be no longer disabled at any time between

the date of that disability determination and the first day of COBRA continuation coverage.

(d) The requirement of this paragraph (d) is satisfied if any of the qualified beneficiaries

affected by the qualifying event described in paragraph (b) of this Q&A-5 provides notice to the

plan administrator of the disability determination on a date that is both within 60 days after the

date the determination is issued and before the end of the original 18-month maximum coverage

period that applies to the qualifying event.

Q-6: Under what circumstances can the maximum coverage period be expanded?

A-6: (a) The maximum coverage period can be expanded if the requirements of Q&A-5

of this section (relating to the disability extension ) or paragraph (b) of this Q&A-6 are satisfied.

(b) The requirements of this paragraph (b) are satisfied if a qualifying event that gives rise

to an 18-month maximum coverage period (or a 29-month maximum coverage period in the case

of a disability extension) is followed, within that 18-month period (or within that 29-month

period, in the case of a disability extension), by a second qualifying event (for example, a death or

a divorce) that gives rise to a 36-month maximum coverage period. (Thus, a termination of
 - 101 -
employment following a qualifying event that is a reduction of hours of employment cannot be a

second qualifying event that expands the maximum coverage period; the bankruptcy of the

employer also cannot be a second qualifying event that expands the maximum coverage period.)

In such a case, the original 18-month period (or 29-month period, in the case of a disability

extension) is expanded to 36 months, but only for those individuals who were qualified

beneficiaries under the group health plan in connection with the first qualifying event and who are

still qualified beneficiaries at the time of the second qualifying event. No qualifying event (other

than a qualifying event that is the bankruptcy of the employer) can give rise to a maximum

coverage period that ends more than 36 months after the date of the first qualifying event (or

more than 36 months after the date of the loss of coverage, in the case of a plan that provides for

the extension of the required periods). For example, if an employee covered by a group health

plan that is subject to COBRA terminates employment (for reasons other than gross misconduct)

on December 31, 2000, the termination is a qualifying event giving rise to a maximum coverage

period that extends for 18 months to June 30, 2002. If the employee dies after the employee and

the employee’s spouse and dependent children have elected COBRA continuation coverage and

on or before June 30, 2002, the spouse and dependent children (except anyone among them

whose COBRA continuation coverage had already ended for some other reason) will be able to

receive COBRA continuation coverage through December 31, 2003.

Q-7: If health coverage is provided to a qualified beneficiary after a qualifying event

without regard to COBRA continuation coverage (for example, as a result of state or local law,

the Uniformed Services Employment and Reemployment Rights Act of 1994 (38 U.S.C. 4315),
 - 102 -
industry practice, a collective bargaining agreement, severance agreement, or plan procedure),

will such alternative coverage extend the maximum coverage period?

A-7: (a) No. The end of the maximum coverage period is measured solely as described

in Q&A-1 and Q&A-6 of this section, which is generally from the date of the qualifying event.

(b) If the alternative coverage does not satisfy all the requirements for COBRA

continuation coverage, or if the amount that the group health plan requires to be paid for the

alternative coverage is greater than the amount required to be paid by similarly situated

nonCOBRA beneficiaries for the coverage that the qualified beneficiary can elect to receive as

COBRA continuation coverage, the plan covering the qualified beneficiary immediately before the

qualifying event must offer the qualified beneficiary receiving the alternative coverage the

opportunity to elect COBRA continuation coverage. See Q&A-1 of §54.4980B-6.

(c) If an individual rejects COBRA continuation coverage in favor of alternative

coverage, then, at the expiration of the alternative coverage period, the individual need not be

offered a COBRA election. However, if the individual receiving alternative coverage is a covered

employee and the spouse or a dependent child of the individual would lose that alternative

coverage as a result of a qualifying event (such as the death of the covered employee), the spouse

or dependent child must be given an opportunity to elect to continue that alternative coverage,

with a maximum coverage period of 36 months measured from the date of that qualifying event.

Q-8: Must a qualified beneficiary be given the right to enroll in a conversion health plan at

the end of the maximum coverage period for COBRA continuation coverage?

A-8: If a qualified beneficiary’s COBRA continuation coverage under a group health plan

ends as a result of the expiration of the maximum coverage period, the group health plan must,
 - 103 -
during the 180-day period that ends on that expiration date, provide the qualified beneficiary the

option of enrolling under a conversion health plan if such an option is otherwise generally

available to similarly situated nonCOBRA beneficiaries under the group health plan. If such a

conversion option is not otherwise generally available, it need not be made available to qualified

beneficiaries.

§54.4980B-8 Paying for COBRA continuation coverage.

The following questions-and-answers address paying for COBRA continuation coverage:

Q-1: Can a group health plan require payment for COBRA continuation coverage?

A-1: (a) Yes. For any period of COBRA continuation coverage, a group health plan can

require the payment of an amount that does not exceed 102 percent of the applicable premium for

that period. (See paragraph (b) of this Q&A-1 for a rule permitting a plan to require payment of

an increased amount due to the disability extension.) The applicable premium is defined in section

4980B(f)(4). A group health plan can terminate a qualified beneficiary’s COBRA continuation

coverage as of the first day of any period for which timely payment is not made to the plan with

respect to that qualified beneficiary (see Q&A-1 of §54.4980B-7). For the meaning of timely

payment, see Q&A-5 of this section.

(b) A group health plan is permitted to require the payment of an amount that does not

exceed 150 percent of the applicable premium for any period of COBRA continuation coverage

covering a disabled qualified beneficiary (for example, whether single or family coverage) if the

coverage would not be required to be made available in the absence of a disability extension. (See

Q&A-5 of §54.4980B-7 for rules to determine whether a qualified beneficiary is entitled to a

disability extension.) A plan is not permitted to require the payment of an amount that exceeds
 - 104 -
102 percent of the applicable premium for any period of COBRA continuation coverage to which

a qualified beneficiary is entitled without regard to the disability extension. Thus, if a qualified

beneficiary entitled to a disability extension experiences a second qualifying event within the

original 18-month maximum coverage period, then the plan is not permitted to require the

payment of an amount that exceeds 102 percent of the applicable premium for any period of

COBRA continuation coverage. By contrast, if a qualified beneficiary entitled to a disability

extension experiences a second qualifying event after the end of the original 18-month maximum

coverage period, then the plan may require the payment of an amount that is up to 150 percent of

the applicable premium for the remainder of the period of COBRA continuation coverage (that is,

from the beginning of the 19th month through the end of the 36th month) as long as the disabled

qualified beneficiary is included in that coverage. The rules of this paragraph (b) are illustrated by

the following examples; in each example the group health plan is subject to COBRA:

Example 1. (i) An employer maintains a group health plan. The plan determines the cost
of covering individuals under the plan by reference to two categories, individual coverage and
family coverage, and the applicable premium is determined for those two categories. An
employee and members of the employee’s family are covered under the plan. The employee
experiences a qualifying event that is the termination of the employee’s employment. The
employee’s family qualifies for the disability extension because of the disability of the employee’s
spouse. (Timely notice of the disability is provided to the plan administrator.) Timely payment of
the amount required by the plan for COBRA continuation coverage for the family (which does not
exceed 102 percent of the cost of family coverage under the plan) was made to the plan with
respect to the employee’s family for the first 18 months of COBRA continuation coverage, and
the disabled spouse and the rest of the family continue to receive COBRA continuation coverage
through the 29th month.

(ii) Under these facts, the plan may require payment of up to 150 percent of the applicable
premium for family coverage in order for the family to receive COBRA continuation coverage
from the 19th month through the 29th month. If the plan determined the cost of coverage by
reference to three categories (such as employee, employee-plus-one-dependent, employee-plus-
two-or-more-dependents) or more than three categories, instead of two categories, the plan could
still require, from the 19th month through the 29th month of COBRA continuation coverage, the
 - 105 -
payment of 150 percent of the cost of coverage for the category of coverage that included the
disabled spouse.

Example 2. (i) The facts are the same as in Example 1, except that only the covered
employee elects and pays for the first 18 months of COBRA continuation coverage.

(ii) Even though the employee’s disabled spouse does not elect or pay for COBRA
continuation coverage, the employee satisfies the requirements for the disability extension to apply
with respect to the employee’s qualifying event. Under these facts, the plan may not require the
payment of more than 102 percent of the applicable premium for individual coverage for the entire
period of the employee’s COBRA continuation coverage, including the period from the 19th
 - 106 -
(b) During a determination period, a plan can increase the amount it requires to be paid

for a qualified beneficiary’s COBRA continuation coverage only in the following three cases:

(1) The plan has previously charged less than the maximum amount permitted under

Q&A-1 of this section and the increased amount required to be paid does not exceed the

maximum amount permitted under Q&A-1 of this section;

(2) The increase occurs during the disability extension and the increased amount required

to be paid does not exceed the maximum amount permitted under paragraph (b) of Q&A-1 of this

section; or

(3) A qualified beneficiary changes the coverage being received (see paragraph (c) of this

Q&A-2 for rules on how the amount the plan requires to be paid may or must change when a

qualified beneficiary changes the coverage being received).

(c) If a plan allows similarly situated active employees who have not experienced a

qualifying event to change the coverage they are receiving, then the plan must also allow each

qualified beneficiary to change the coverage being received on the same terms as the similarly

situated active employees. (See Q&A-4 in §54.4980B-5.) If a qualified beneficiary changes

coverage from one benefit package (or a group of benefit packages) to another benefit package

(or another group of benefit packages), or adds or eliminates coverage for family members, then

the following rules apply. If the change in coverage is to a benefit package, group of benefit

packages, or coverage unit (such as family coverage, self-plus-one-dependent, or self-plus-two-

or-more-dependents) for which the applicable premium is higher, then the plan may increase the

amount that it requires to be paid for COBRA continuation coverage to an amount that does not

exceed the amount permitted under Q&A-1 of this section as applied to the new coverage. If the
 - 107 -
change in coverage is to a benefit package, group of benefit packages, or coverage unit (such as

individual or self-plus-one-dependent) for which the applicable premium is lower, then the plan

cannot require the payment of an amount that exceeds the amount permitted under Q&A-1 of this

section as applied to the new coverage.

Q-3: Must a plan allow payment for COBRA continuation coverage to be made in

monthly installments?

A-3: Yes. A group health plan must allow payment for COBRA continuation coverage to

be made in monthly installments. A group health plan is permitted to also allow the alternative of

payment for COBRA continuation coverage being made at other intervals (for example, weekly,

quarterly, or semiannually).

Q-4: Is a plan required to allow a qualified beneficiary to choose to have the first payment

for COBRA continuation coverage applied prospectively only?

A-4: No. A plan is permitted to apply the first payment for COBRA continuation

coverage to the period of coverage beginning immediately after the date on which coverage under

the plan would have been lost on account of the qualifying event. Of course, if the group health

plan allows a qualified beneficiary to waive COBRA continuation coverage for any period before

electing to receive COBRA continuation coverage, the first payment is not applied to the period

of the waiver.

Q-5: What is timely payment for COBRA continuation coverage?

A-5: (a) Except as provided in this paragraph (a) or in paragraph (b) or (d) of this Q&A-

5, timely payment for a period of COBRA continuation coverage under a group health plan means
 - 108 -
payment that is made to the plan by the date that is 30 days after the first day of that period.

Payment that is made to the plan by a later date is also considered timely payment if either –

(1) Under the terms of the plan, covered employees or qualified beneficiaries are allowed

until that later date to pay for their coverage for the period; or

(2) Under the terms of an arrangement between the employer or employee organization

and an insurance company, health maintenance organization, or other entity that provides plan

benefits on the employer’s or employee organization’s behalf, the employer or employee

organization is allowed until that later date to pay for coverage of similarly situated nonCOBRA

beneficiaries for the period.

(b) Notwithstanding paragraph (a) of this Q&A-5, a plan cannot require payment for any

period of COBRA continuation coverage for a qualified beneficiary earlier than 45 days after the

date on which the election of COBRA continuation coverage is made for that qualified

beneficiary.

(c) If, after COBRA continuation coverage has been elected for a qualified beneficiary, a

provider of health care (such as a physician, hospital, or pharmacy) contacts the plan to confirm

coverage of a qualified beneficiary for a period for which the plan has not yet received payment,

the plan must give a complete response to the health care provider about the qualified

beneficiary’s COBRA continuation coverage rights, if any, described in paragraphs (a), (b), and

(d) of this Q&A-5. For example, if the plan provides coverage during the 30- and 45-day grace

periods described in paragraphs (a) and (b) of this Q&A-5 but cancels coverage retroactively if

payment is not made by the end of the applicable grace period, then the plan must inform a

provider with respect to a qualified beneficiary for whom payment has not been received that the
 - 109 -
qualified beneficiary is covered but that the coverage is subject to retroactive termination if timely

payment is not made. Similarly, if the plan cancels coverage if it has not received payment by the

first day of a period of coverage but retroactively reinstates coverage if payment is made by the

end of the grace period for that period of coverage, then the plan must inform the provider that

the qualified beneficiary currently does not have coverage but will have coverage retroactively to

the first date of the period if timely payment is made. (See paragraph (b) of Q&A-3 in

§54.4980B-6 for similar rules that the plan must follow in confirming coverage during the election

period.)

(d) If timely payment is made to the plan in an amount that is not significantly less than

the amount the plan requires to be paid for a period of coverage, then the amount paid is deemed

to satisfy the plan’s requirement for the amount that must be paid, unless the plan notifies the

qualified beneficiary of the amount of the deficiency and grants a reasonable period of time for

payment of the deficiency to be made. For this purpose, as a safe harbor, 30 days after the date

the notice is provided is deemed to be a reasonable period of time.

(e) Payment is considered made on the date on which it is sent to the plan.

PART 602 – OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

Par. 3. The authority citation for part 602 continues to read as follows:

Authority: 26 U.S.C. 7805.

 - 110 -
Par. 4. In §602.101, paragraph (c) is amended by adding entries in numerical order to the

table to read as follows:

§602.101 OMB Control numbers.

* * * * *

(c) * * *

______________________________________________________________________
CFR part or section where Current OMB
identified and described control No.

* * * * *
54.4980B-6.............................................................................................1545-1581
54.4980B-7.............................................................................................1545-1581
54.4980B-8.............................................................................................1545-1581
* * * * *
______________________________________________________________________

Robert E. Wenzel
Deputy Commissioner of Internal Revenue

Approved: December 28, 1998

Donald C. Lubick
Assistant Secretary of the Treasury
(Tax Policy)