Avoid birthday rule

Message Author
ampm-bookmark
delicious-small Add to delicious
yahoomyweb-small Add to YahooMyWeb
blinklist-small Add to BlinkList
PostPosted: Sat Nov 20, 2010 2:22 am   Post subject:   

Oops, dependents under 26, not 27. I know it's not relevant to my issue, but I felt I needed to fix it anyway Smile


_________________
Register Now to have your Insurance queries solved.
N Smith
Guest







PostPosted: Sat Nov 20, 2010 9:27 am   Post subject:   

I'm going to respond in two ways. First, I have sent you the relevant section of the Indiana Administrative Code (760 IAC 1-38.1). In that document, in Section 11, you will find the important passage on which you need to stake your position:



Quote:
(c) A COB provision may not be used that permits a plan to reduce its benefits on the basis that:

(1) another plan exists and the covered person did not enroll in that plan; or

(2) a person:

(A) is or could have been covered under another plan, except with respect to Part B of Medicare; or

(B) has elected an option under another plan providing a lower level of benefits than another option that could have been elected.





Indiana state law is clear -- you cannot be forced to apply for another benefit plan. Your employer's plan cannot exclude your dependent children on the basis that another plan may be available.



When you talked to someone at the USDOL, was it someone from the Employee Benefits Security Administration, or a clerk who answered the phone?



Quote:
She did say, however, that the employer can conjure up and enforce rules such as this,




You obviously talked to the wrong person. You may need to file a formal complaint with the USDOL EBSA. But maybe not.



I have spent some time reading ERISA and a couple of federal court cases on the matter. First, ERISA has no coordination of benefits provision within its pages. As a result, this places a burden on the federal courts to create a "common law" applicable to the issue. One of the clearest, and most succinct discussions is found in PM GROUP LIFE INSURANCE CO. v. WESTERN GROWERS ASSURANCE TRUST (953 F.2nd 543).



Noting that ERISA is silent on COB provisions, the district court held that the applicable law of the state (California) regarding COB provisions is not preempted by ERISA, except in the case of "self-funded plans". It is also clear from the reading of this court's opinion and analysis, that COB applies when a person is COVERED BY MORE THAN ONE PLAN (as I have stated previously). Indiana state law says the same thing. (The case also involved a self-funded plan, and the court determined that the self-funded plan's coverage was primary according to the birthday rule). There is nothing to suggest that a COB provision/birthday rule can be the basis for forcing a person to enroll their dependent children in another plan. (The court also relied on previous decisions in similar cases in other districts.)



If your employer-sponsored plan is not a "self-funded" plan, then it is clearly regulated under state law to the extent that ERISA does not supersede. And ERISA clearly does not supersede in the matter of COB provisions. Even if it is a self-funded plan, ERISA may still not apply in your matter.



But if it does, ERISA is predominantly concerned with the fair application and access to employee benefit plans by all "similarly situated individuals", and the effect of unfair discrimination against persons within a class of employees.



It is a well-settled principle of federal and state law in all states that marital status is one of several factors that cannot be the basis of discrimination (such as race, color, religion, national origin, sexual orientation, etc).



Even if your plan was a "self-funded" plan, where ERISA controls almost all aspects, it would still likely be considered DISCRIMINATORY to disallow a married person from enrolling his/her children as dependents under the plan by forcing them to enroll in their spouse's plan (by virtue of birthday or not).



I would doubt that the plan forces divorced employees to enroll their dependent children in their former spouse's employer's plan (without that ex-spouse's cooperation, it would be nearly impossible to get the children enrolled in that other plan without a court order). And what about unmarried employees with children -- do they force that person to enroll the children in the "biological" parent's plan?



Do you know whether your employer's health plan is a "self-funded" plan or not? That's one question that remains to be answered. You also need to get a copy of the actual contract language they are relying on. Even if it is a self-funded plan, I think that the discrimination aspect I have outlined above is well within the purview of ERISA (and enforced by the EBSA), even though there is nothing about COB in the Act.



Once you have that answer in hand, then you will know how to proceed. If it is not a "self-funded plan", then you need to press the point with the Indiana DOI, invoking the words of the Commisioner's own regulations in 760 IAC 1-38.1-11.



If it is a self-funded plan, then you press the point with EBSA. Either way, the specific point you need to press is that the plan's erroneous definition and application of COB is DISCRIMINATORY because it its based on marital status alone.



In the meantime, forget the business about Obamacare (which would absolutely be true) until 1-1-2014. Your employer's plan is probably "grandfathered" under the rules that existed prior to the effective date of 9-23-2010,



Hope this helps.


_________________

CA-licensed Life & Disability Analyst. CA Insurance Lic #0596197. Also investigating insurance company abuses, and providing litigation support/expert witness services. Send me your questions, and I'll send you my answers.
MaxHerr
Forum Expert
Leave a quick message

MaxHerr
Forum Expert

Joined: 29 Nov 2009
Posts: 7888

Location: Pomona CA
107.51 Dollars($)

PostPosted: Sat Nov 20, 2010 12:49 pm   Post subject:   

Max,



After looking up the definition of a 'self funded plan' Smile , I can tell you that our company does not have this...they pay a premium to Anthem BCBS to provide our coverage.



Concerning your question: "And what about unmarried employees with children -- do they force that person to enroll the children in the "biological" parent's plan?"



The answer is no, the child would automatically be accepted to the employee's (my employer's) plan. So, as you mentioned, this definitely sounds like marital discrimination.



I have the paperwork sitting in my desk at work that lays out these particular rules. I will definitely go get them today and quote these sections for you. Actually, I'll probably go ahead and scan the entire page then email it to you if that's okay.



Concerning my conversation with the USDOL, I believe a clerk initially answered the phone, but they forwarded me over to the (I believe) Employee Benefits Security Administration after explaining to them my situation. It was after 4pm on a Friday, so maybe they just didn't want to spend much time on the phone with me Smile



Once again I want to thank you for the immense help you've been giving me (and it appears many others on this site as well). The fact that you've spent time digging through old cases to help me with my issue really does mean a lot!!


_________________
Register Now to have your Insurance queries solved.
N Smith
Guest







PostPosted: Sat Nov 20, 2010 12:57 pm   Post subject:   

I forgot to mention this is the last post. Concerning Obamacare and our plan being grandfathered...I believe during our benefits meeting last week, our HR insurance rep stated that since they are making some changes to the plans for next year, their old plan can not be grandfathered. I can double check on this Monday if it would bear any additional weight on my argument.


_________________
Register Now to have your Insurance queries solved.
N Smith
Guest







PostPosted: Sat Nov 20, 2010 4:38 pm   Post subject:   

Quote:
they pay a premium to Anthem BCBS to provide our coverage.




It's not unusual for some self-funded plans to obtain insurance to cover some of their risk, and the BCBS contract could still be within the definition of a self-funded plan. It has to do with how the company is administering all of its benefit plans. But, you're probably correct, especially if your company is relatively "small" -- under 150 employees or so -- or has somewhat unpredictable or unstable cash flow.



There was just new guidance issued in the last week or so about "grandfathering" of plans. Originally, it was meant to prevent changing insurance companies. But now, even if a new insurance company is taking over an existing plan, as long as the benefits are essentially unchanged, the plan may still be grandfathered, if the real reason for the change from Company A to Company B was to obtain a lower premium.



Changes which would prevent the grandfathering would include deletion (or addition) of a major coverage segment (but not the elimination of the "annual" or "lifetime" benefit limits as required by the PPACA), revising the plan concerning what makes an employee eligible, terminating coverage for dependents entirely, converting from a noncontributory plan (the employer covers the employee cost 100% and 100% of eligible employees are covered) to a contributory plan (where employees pay some or all of the cost), those are the kinds of things that would preclude grandfathering.



I think you are on pretty firm ground to be able to tell your plan administrator to learn to read and understand the Indiana Insurance Code and the Administrative Code, before you file your federal class action suit against them. Keep us informed of your situation.


_________________

CA-licensed Life & Disability Analyst. CA Insurance Lic #0596197. Also investigating insurance company abuses, and providing litigation support/expert witness services. Send me your questions, and I'll send you my answers.
MaxHerr
Forum Expert
Leave a quick message

MaxHerr
Forum Expert

Joined: 29 Nov 2009
Posts: 7888

Location: Pomona CA
107.51 Dollars($)

PostPosted: Sat Nov 20, 2010 8:02 pm   Post subject:   

Our company employs approximately 1000+ people, so I'll ask whether or not they use a self-funded plan.



Also, they are offering an HRA plan this year which is new for them. If I remember correctly, they said that this was the reason for them losing their ability to have a grandfathered plan.



BTW, apparently my employer has a contributory plan since they pay a large portion, but not all, of the premiums. This hasn't just changed, though...it's been that way for approximately 6 years.

I'm going to go ahead and email you the rules sheet I had mentioned previously...I hope you don't mind.


_________________
Register Now to have your Insurance queries solved.
N Smith
Guest







PostPosted: Mon Dec 06, 2010 5:53 pm   Post subject:   

Can I ask if the same rule applies in NY? My wife's health insurance is much more affordable than mine and we are being told that our baby who will be born in Jan. MUST go onto my plan because of the birthday rule. This has caused stress... my single plan costs $85 a week. if I am forced to bump it up to a family plan, that cost goes to $300 per week... simply unaffordable...


_________________
Register Now to have your Insurance queries solved.
NYCRISS
Guest







PostPosted: Tue Dec 07, 2010 6:02 pm   Post subject:   

In separate communications with the OP, it became apparent that his employer's sponsored plan was a SELF-FUNDED plan. Under ERISA, the plan has certain flexibility to write its own rules outside the jurisdiction of state law. The same would be true in New York State.



You need to know/find out if your employer's plan AND your spouse's employer's plan is SELF-FUNDED or FULLY INSURED. When you have that information, send me an email/pm and we can discuss it further.



_________________

CA-licensed Life & Disability Analyst. CA Insurance Lic #0596197. Also investigating insurance company abuses, and providing litigation support/expert witness services. Send me your questions, and I'll send you my answers.
MaxHerr
Forum Expert
Leave a quick message

MaxHerr
Forum Expert

Joined: 29 Nov 2009
Posts: 7888

Location: Pomona CA
107.51 Dollars($)

PostPosted: Tue Dec 07, 2010 6:44 pm   Post subject:   

My wife's plan is through a union and my plan is a group plan... I am not sure if this answered your question simply because I'm not sure what you are asking...



What does self funded/fully insured mean?


_________________
Register Now to have your Insurance queries solved.
NYCRISS
Guest







PostPosted: Wed Dec 08, 2010 5:31 am   Post subject:   

Ok i found out her plan is a non-profit. I dont know if that makes a difference


_________________
Register Now to have your Insurance queries solved.
nycriss
Guest







PostPosted: Wed Dec 08, 2010 12:04 pm   Post subject:   

You need to determine if the plan is SELF-FUNDED (the liability for claims rests with the employer) or FULLY-INSURED (the liability for claims rests with the insurance company). Once you have that answer, then we can give better guidance.



Normally, the birthday rule is not used to force coverage, but to identify which plan is primary when a child is covered by more than one plan. Self-funded plans can write more explicit rules, although if found to be discriminatory, they will not be upheld by the US Dept of Labor.



_________________

CA-licensed Life & Disability Analyst. CA Insurance Lic #0596197. Also investigating insurance company abuses, and providing litigation support/expert witness services. Send me your questions, and I'll send you my answers.
MaxHerr
Forum Expert
Leave a quick message

MaxHerr
Forum Expert

Joined: 29 Nov 2009
Posts: 7888

Location: Pomona CA
107.51 Dollars($)

PostPosted: Sun May 15, 2011 2:13 pm   Post subject: DAxAlAZpWEBK  

Birthday rule exceptions.. Bully Smile


_________________
Register Now to have your Insurance queries solved.
www.ampminsure.org
Guest







PostPosted: Fri Jun 03, 2011 9:29 am   Post subject: OCcYUafEWeKjJ  

Birthday rule exceptions.. Reposted it Smile


_________________
Register Now to have your Insurance queries solved.
www.ampminsure.org
Guest







PostPosted: Mon Jun 25, 2018 9:43 am   Post subject: Birthday Rule  

What if gender is same in birthday rule, then whose health plan covers the children?


_________________
Register Now to have your Insurance queries solved.
Shivang Sharma
Guest







PostPosted: Tue Jun 26, 2018 6:14 am   Post subject:   

Hello everyone, I'm new here. It is good to be a part of such helpful community.

Ruby
New member
Leave a quick message



Joined: 08 Jun 2018
Posts: 8


1.79 Dollars($)

Quick Reply
Your Name
Subject
Message body
All times are GMT
 Previous  1, 2
Page 2 of 2


Get a Quote
Ask Community Experts

flash plugin

Quick Links

Must See

Community

Hot topics in forums

Latest in blogs

    Connection Error: Connection refused