Information letters are furnished by the Internal Revenue Service’s (IRS) National Office in response to requests for general information by taxpayers, by congresspersons on behalf of constituents, or by congress-persons on their own behalf. The release of information letters has increased and is intended to increase public confidence that the tax system operates fairly and in an even-handed manner with respect to all taxpayers.
A recently released information letter addresses the interaction of COBRA and Medicare. Specifically, the information letter addressed the circumstances under which a covered spouse is entitled to extended COBRA continuation due to the covered employee’s Medicare entitlement prior to termination of employment. The letter provides that a covered employee becomes “entitled to Medicare benefits upon the effective date of enrollment in either part A or B, whichever occurs earlier.”
Under the Consolidated Omnibus Budget Reconciliation Act (COBRA) a qualified beneficiary who loses group health plan coverage due to a qualifying event can be eligible to continue that coverage for a specific period of time.
A qualified beneficiary is an employee, the employee’s spouse and/or dependent. There are six events that if their occurrence causes a loss of coverage will trigger COBRA continuation. They are: termination of employment, a reduction in hours, death, divorce, loss of dependent status, and entitlement to Medicare. The general rule is that continuation coverage, which is paid for by the qualified beneficiary, is available for a period of 18 months. However, there are limited situations where coverage may be extended for up to 29 or 36 months.
Medicare and COBRA
Even though the rules provide that “entitlement to Medicare” is a reason for continuation coverage, this language often causes confusion. As a reminder, the Medicare entitlement must cause a loss of coverage. An employer that is subject to COBRA continuation, i.e. one that has 20 or more employees in the current or preceding calendar year, is also subject to another federal law governing a health care plan, and that is the Medicare Secondary Payer rules (MSP). The MSP rules provide that an employee (or spouse) that becomes entitled to Medicare cannot be terminated from the plan due to that entitlement. Therefore, just becoming Medicare eligible, such as by turning 65 years old, is not a reason for terminating an employee’s or spouse’s health care coverage.
However, Medicare entitlement will become an issue if there is a loss of coverage for an employee due to the qualifying event of a reduction in hours or termination of employment. The issue will be whether the employee becomes Medicare entitled before the qualifying event or after the qualifying event.
The information letter explains that the covered spouse of an employee can receive COBRA continuation coverage for 36 months if that employee became entitled to Medicare benefits before termination of employment or a reduction in hours. The 36-month period begins to run after the date the covered employee became entitled to Medicare coverage. If the employee becomes entitled to Medicare after the termination of employment or reduction in hours, then the spouse will be limited to a maximum COBRA continuation period of 18 months.
As a reminder, an employee who experiences a loss of coverage due to a qualifying event is always limited to a maximum COBRA continuation period of 18 months.
The information letter is not breaking new ground but serves as a reminder of one of the ways the maximum period of COBRA continuation coverage can be affected by a covered employee’s Medicare entitlement. As noted, information letters are often released relating to requests on general information. As always, an employer should consult with its counsel and trusted advisors to ensure that it is complying with the various laws when providing employee benefits.