American Recovery and Reinvestment Act Includes COBRA Changes

The American Recovery and Reinvestment Act of 2009 (“ARRA”) provides for premium reductions and additional election opportunities for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit. The premium reduction applies to periods of health coverage starting on or after February 17, 2009 and lasts for up to nine months.


COBRA gives employees who lose their jobs, including their health benefits, the right to purchase group health coverage provided by the plan under certain circumstances.

If the employer continues to offer a group health plan, the employee and his or her dependants can keep their group health coverage for up to 18 months by paying group rates. The COBRA premium may be higher than what the individual was paying while employed, but in general, the cost is lower than that for private, individual health insurance coverage.

The plan administrator must notify affected employees of their right to elect COBRA. The employee and his or her dependants each have 60 days to elect the COBRA coverage, otherwise they lose all rights to COBRA benefits.

It is important to note that COBRA generally does not apply to plans sponsored by employers with less than 20 employees. However, many States (including Nebraska) have similar requirements for small plans providing benefits through an insurance company. The premium reduction is available for plans covered by these State laws.

Changes Regarding COBRA Continuation Coverage Under ARRA

Premium Reduction:  The premium reduction for COBRA continuation coverage is available to “assistance eligible individuals.”

An “assistance eligible individual” is the employee or a member of his or her family who:

·         is eligible for COBRA continuation coverage at any time between September 1, 2008 and December 31, 2009;

·         elects COBRA coverage; and

·         is eligible for COBRA as a result of the employee’s involuntary termination between September 1, 2008 and December 31, 2009.

Those who are eligible for other group health coverage (such as a spouse’s plan) or Medicare are not eligible for the premium reduction. There is no premium reduction for premiums paid for periods of coverage prior to February 17, 2009.

ARRA treats assistance eligible individuals who pay 35 percent of their COBRA premium as having paid the full amount. The premium reduction (65 percent of the full premium) is reimbursable to the employer, insurer or health plan as a credit against certain employment taxes. If the credit amount is greater than the taxes due, the Secretary of the Treasury will directly reimburse the employer, insurer or plan for the excess.

The premium reduction applies to periods of coverage starting on or after February 17, 2009. A period of coverage is a month or shorter period for which the plan charges a COBRA premium. The premium reduction starts on March 1, 2009 for plans that charge for COBRA coverage on a calendar month basis. The premium reduction for an individual ends upon eligibility for other group coverage (or Medicare), after 9 months of the reduction, or when the maximum period of COBRA coverage ends, whichever occurs first. Individuals paying reduced COBRA premiums must inform their plans if they become eligible for coverage under another group health plan or Medicare.

Special COBRA Election Opportunity:  Individuals involuntarily terminated from September 1, 2008 through February 16, 2009 who did not elect COBRA when it was first offered OR who did elect COBRA, but are no longer enrolled (for example because they were unable to continue paying the premium) have a new election opportunity. This election period starts on February 17, 2009 and ends 60 days after the plan provides the required notice. This special election period does not extend the period of COBRA continuation coverage beyond the original maximum period. COBRA coverage elected in this special election period begins with the first period of coverage beginning on or after February 17, 2009. Additionally, this special election period opportunity does not apply to coverage sponsored by employers with less than 20 employees that is subject to State law.

Notice: Plan administrators must provide notice about the premium reduction to individuals who have a COBRA qualifying event during the period from September 1, 2008 through December 31, 2009. Plan administrators may provide notices separately or along with notices they provide following a COBRA qualifying event. This notice must go to all individuals, whether they have COBRA coverage or not, who had a qualifying event from September 1, 2008 through December 31, 2009.

Individuals eligible for the special COBRA election period described above also must receive a notice informing them of this opportunity, which must be provided within 60 days following February 17, 2009.

Expedited Review of Denials of Premium Reduction: Individuals who are denied treatment as assistance eligible individuals and thus are denied eligibility for the premium reduction (whether by their plan, employer or insurer) may request an expedited review of the denial by the U.S. Department of Labor. The Department must make a determination within 15 business days of receipt of a completed request for review. The Department is currently developing a process and an official application form that will be required to be completed for appeals.

Switching Benefit Options: If an employer offers additional coverage options to active employees, the employer may (but is not required to) allow assistance eligible individuals to switch the coverage options they had when they became eligible for COBRA. To retain eligibility for the ARRA premium reduction, the different coverage must have the same or lower premiums as the individual’s original coverage. The different coverage cannot be coverage that provides only dental, vision, a health flexible spending account, or coverage for treatment that is furnished in an on-site facility maintained by the employer.

Income limits: If an individual’s modified adjusted gross income for the tax year in which the premium assistance is received exceeds $145,000 (or $290,000 for joint filers), then the amount of the premium reduction during the tax year must be repaid. For taxpayers with adjusted gross income between $125,000 and $145,000 (or $250,000 and $290,000 for joint filers), the amount of the premium reduction that must be repaid is reduced proportionately. Individuals may permanently waive the right to premium reduction but may not later obtain the premium reduction if their adjusted gross incomes end up below the limits.

Fact Sheet: COBRA Premium Reduction

U.S. Department of Labor

February 26, 2009

  © 2009 Parsonage Vandenack Williams LLC

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On January 16, 2009, the Family and Medical Leave Act (“FMLA”) regulations issued U.S. Department of Labor went into effect.  This is the first major update since the FMLA was enacted over 15 years ago.  Although the basic rights have not changed, Congress amended the FMLA to provide new leave rights relating to military family leave and also updated and modified certain other FMLA regulations.  A summary of the key items in the new regulations is provided below.


Serious Injury or Illness of Covered Service Member


The changes to the FMLA authorize up to 26 weeks of leave for certain family members to care for seriously ill or injured military personnel.  The provision is not limited to just immediate family members.  Rather, an employee eligible for this type of leave includes next of kin as well as immediate family members.  The serious injury or illness provision is different from the FMLA’s serous health condition provision.  A serious injury or illness is one that “may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating.”  The regulations clearly state that an employee cannot combine the standard 12 weeks of FMLA leave with the 26 weeks of service member leave.


Qualifying Exigency for Military Personnel


The changes to this provision include up to 12 weeks of leave in a 12-month period due to a “qualifying exigency” relating to an employee’s immediate family member being on active duty, or who has been notified of an impending call to active duty, in support of a contingency operation.  This type of leave does apply if the service member is a member of the regular armed forces – it applies only to members of the reserves or the retired forces.


According to the statute, a “qualifying exigency” includes: (1) any issue that arises from receiving short notice of deployment (seven or less calendar days of deployment), where leave can be used during the seven calendar days; (2) attendance at official ceremonies, programs, family support programs, or informational briefings; (3) arrangements of childcare or attendance at certain school activities; (4) to make or update legal or financial arrangements; (5) to attend counseling; (6) to spend time with a military service member on short-term rest and recuperation (limit of five days); and (7) post-deployment official programs, or issues relating to death.  The need to take leave for one or more of the above reasons must be related to the service member’s active duty or call to active duty.


Serious Health Condition and Continuing Treatment


Under the current regulations, a serious health condition may be established by a three-day period of incapacity that is followed by subsequent treatment.  However, under the new regulations, the subsequent treatment needs to occur within specific timeframes.  If the subsequent treatment consists of two or more treatments, the treatment must occur within 30 days of the first day of incapacity.  If the subsequent treatment consists of one visit followed by treatment, the visit (which must be in person) must occur within seven days of the first day of incapacity.


Certification/Fitness for Duty


There are several changes in regard to an employer’s right to request certification under the FMLA.  This includes the ability of the employer to request additional certifications at specific intervals.  The new rules have rules regarding essential functions and serious health conditions.  Specifically, they permit the employer to include information in the certification form directed to the employee’s essential functions and the ability of the employee to perform those essential functions.  This is very significant because a “serious health condition” is defined to include a three-day period of incapacity, which may include an inability to work.  Under the existing regulations, there is no way to evaluate a health care provider’s general assertion of incapacity.  But with the new regulations, there will be an ability for the employer to request specific information relating to the alleged incapacity, through an evaluation of the employee’s ability to perform the essential functions of his or her job.  The fitness for duty form can now also request information about the employee’s ability to perform the essential functions of his or her job.


Doctor Consent


One problem employers have had with collecting needed information was the prohibition on anyone other than the employer’s medical professional contacting the employee’s health care provider.  This has changed.  Under the new regulations, other individuals are also authorized to contact the employee’s health care provider for authentication and clarification, including a human resources professional.  Although a management representative may contact the employee’s health care provider, this may not be the employee’s direct supervisor.


New Forms


The Department of Labor has issued several new forms that fully comply with the new FMLA regulations.  The new forms are not required to be used but will likely prove to be very helpful to employers.  The forms are available at


  © 2009 Parsonage Vandenack Williams LLC
 For more information, contact