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ARTICLES:

Missouri Employment Benefits
HIPAA, ERISA, COBRA
Continuation of Health Coverage

This article introduces you to some of the major benefit protection laws, and points you at substantial sources of further detailed information. I hope you find this summary useful despite its limitations.

Jump to the following subsections, or just scroll down the page.

Missouri 9 month Continuation of Health Insurance Coverage

For group health plans that are not covered by the Federal COBRA law (generally those with fewer than 20 employees), Missouri provides a special 9 month continuation of coverage benefit. See Missouri Statute 376.428 for the right to continue coverage for 9 months (opens in new window).

TRAP: Under Missouri Continuation, you only get 31 days to “elect” to continue. So don’t assume that Missouri Continuation will operate the same as the Federal Cobra continuation.

See the Missouri Department of Insurance Life and Health Insurance Questions page (opens in new window) – The Missouri Department of Insurance provides short answers to frequently asked question about insurance benefits and health continuation benefits.

COBRA health coverage continuation

COBRA info website from US Dept of Labor. The Dept of Labor has a comprehensive info site aimed at answering all of your COBRA-related questions. I couldn’t do any better.

COBRA in a nutshell: If your employer (or your spouse’s employer) sponsors a health plan and employed 20 or more people, then when a “qualifying event” occurs, you should be eligible to continue your coverage for a period of time, at your own expense. Qualifying events for an “employee” can be the employee’s death, termination, reduced hours of employment (maybe such reduction causes you to lose eligibility for the health plan, for example) or entitlement to Medicare. For a spouse, divorce can be a qualifying event.

The period of COBRA continued coverage is usually 18 months, but there are rules which the Dept of Labor will fill you in on at its website to allow for longer periods under some circumstances. The rules can get complicated, and that’s why I don’t want to dive into them here. Read the Dept of Labor’s FAQs.

TIMELINE: Most Cobra situations involve employees getting terminated and losing their coverage on the same date as their employment ends. Generally speaking in most instances (see the Dept of Labor website for details), the employer will have 30 days from the qualifying event (such as the termination of your employment) to get you a written notice of your right to continue coverage. You will have up to 60 days to decide whether to continue (”electing COBRA”) and to notify the benefit plan of your decision. See your written notice of rights for more details, but you will probably have a further 45 days (after “electing COBRA”) to pay the back premium to catch up your coverage into a fully-paid-up status.

If you and the employer each use all of your time, and act on the last day, stretching everything out to the limits, you might have a long timeline from the date of your termination of employment to the date of having to pay the COBRA premium: 30 days for the employer to give you Notice of COBRA rights +60 days for you to “elect COBRA” +45 days for you to pay the back premium retro-active to your termination date = 135 days, and a LOT of premium to pay all at once.

TRAP: COBRA contains a provision allowing employers to refuse to give you continued coverage, if you were discharged for gross misconduct. In practice, it is very rare that employers try to make use of this escape valve. When an employer tries to make use of it, you can sue under ERISA and have your day in court on the issue of whether the alleged misconduct rises to the level of gross misconduct. So employers leave it alone and just give you the COBRA continuation forms.

Once again, here is the Dept of Labor’s authoritative COBRA website: COBRA info website from US Dept of Labor.

COBRA is part of the Employee Retirement Income Security Act (ERISA). The United States Department of Labor administers and enforces all ERISA sections, like COBRA. Visit the Dept of Labor’s ERISA Health Plan Information page.

HIPAA Portability & Medical Information Privacy
It’s not “HIPPA”; it’s HIPAA

HIPAA stands for Health Insurance Portability and Accountability Act. HIPAA is part of the Employee Retirement Income Security Act (ERISA). The United States Department of Labor administers and enforces all ERISA sections, like HIPAA. For an introduction to the DOL and ERISA, Visit the Dept of Labor’s ERISA Health Plan Information page.

HIPAA has two main features of interest to the lay public: First, “Portability”, or the ability to change employers and health plans without being subjected to pre-existing conditions limitations (if you have been continuously insured). HIPAA attempts to establish a right to change health plans when you change employers, without having to prove good health, bypassing “pre-existing condition limitation periods”.

The second major purpose of HIPAA is to set standards and protections for the disclosure and use of private medical information. The HIPAA privacy regulations are too new for me to know very much about how the courts will be interpreting them, and I do not feel comfortable at this time attempting to give you much personal insight. But the United States Department of Labor has a wonderful HIPAA Information website, and that’s where the answers are likely to be found, until the courts make authoritative rulings.

Visit the HIPAA info website from US Dept of Labor – This is a comprehensive website that will answer most of your questions. FAQs, How to file a HIPAA complaint, the privacy regulations, etc …

For fun, search Google for “HIPPA” rather than “HIPAA”. I wonder if, in the long run, HIPAA will become more widely known as HIPPA. People can’t seem to resist the tendency to misspell it, I guess because HIPPA is a more phonetically satisfying spelling.

ERISA-related links

ERISA means “Employee Retirement Income Security Act”. The U.S. Congress passed ERISA in about 1973 as a consequence of scandals involving depleted pension funds. As time has passed, Congress has added new benefit protections into ERISA, such as COBRA and HIPAA. The U.S. Department of Labor (DOL) enforces ERISA. To my mind, the DOL’s websites are the most authoritative as regards general ERISA questions.

The main portal through which you can locate the DOL’s ERISA websites is this: Employee Benefit Security Administration of the US Dept of Labor. Info about pension plans, health plans, and other benefit and employment protection topics. I just can’t seem to get tired of linking to the Department of Labor’s very fine websites. Info about all the major Federal employment benefit protections can be found on the DOL websites.

Visit the Dept of Labor’s ERISA Health Plan Information page.

Research Aid: ERISA statutory sections cross-referenced from BenefitsLink.com.

TIPS about lawyers and ERISA benefit problems

As with most of the employment lawyers I know, I do not very often get involved in ERISA-related disputes. This brief list will introduce you to some of the reasons why you might have trouble getting a lawyer, or trouble getting an attractive fee arrangement from a lawyer to help you untangle a benefit problem.

  • DAMAGES: ERISA does not permit compensatory or punitive damages. Ask yourself why not.
  • ATTORNEY FEES: Even if you win an ERISA lawsuit, the court does not have to award attorney fees; the court may award attorney fees, but may not as well. This is different than most of the other big employment laws, where it’s easier to get attorney fees paid if you win. Ask yourself why things are this way.
  • COMPLEXITY: ERISA cases can be monsters of legal complexity, without the carrot of big damages or even a reliable attorney fee award if you win. ERISA is complex of necessity. ERISA cannot be a simple statute, because it regulates very complex things like health and pension benefit plans.
  • COMPLIANCE: In my experience, companies take their COBRA and HIPAA responsibilities very seriously and tend to comply with the law, and therefore easily provable violations are few and far between, unless the company is going bankrupt. But bankrupt companies are not attractive targets for lawyers working on contingency fee, and I think you can understand why.
  • DISCRETION: Perhaps the main area of ERISA-related litigation is in the area of insurance companies that deny health benefits for procedures that should be covered. But ERISA permits health plans to exercise broad discretion in deciding what fits within the coverage framework, and it’s very difficult to get a judge to rule that the benefit plan acted outside its permitted discretion.
  • EXPENSE: If the ERISA issue is a health coverage issue involving a particular expensive medical treatment, someone will have to pay a lot of money to medical experts to contradict the insurance company’s doctors. Is your lawyer going to gamble many thousands of his dollars on a case where he can’t even win compensatory damages, and might not get his attorney fees paid? Not most employment lawyers I know.

Based on the above, people have trouble finding employment lawyers to handle ERISA problems, and the people end up complaining to their local offices of the US Department of Labor (look in the phone book for the Federal Government pages). The DOL has the resources to prosecute ERISA violations. But don’t expect too much, unless the violation is big or important or flagrant.

The employment lawyers in St. Louis tend to lean on Attorney Sheldon Weinhaus when difficult ERISA-related matters arise. Sheldon won a plaintiff-friendly ERISA case at the US Supreme Court in about the year 2001 or so. Sheldon Weinhaus is the closest I know to meeting the definition of “ERISA guru” in St. Louis. I can’t link to him because as of this writing he hasn’t got a website. You can look him up in the phone book.

Other articles on TimsLaw about benefit topics

See the list below for links to other benefit-related articles on this site.

Article written by | Tim Willoughby


***** END OF ARTICLE *****

Timslaw.com Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

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