DOL Releases Proposed Guidance Affecting COBRA Model Notices
On May 2, 2014, EBSA released an advanced copy of proposed rulemaking, which will be published in the May 7, 2014, Federal Register. The guidance amends notice requirements for COBRA so as to better align PPACA and COBRA notice requirements, and to add information relating to special enrollment rights in the state health insurance exchanges. Specifically, the guidance proposes deleting the model notices in the original COBRA regulations (issued in 2004) to provide more flexibility with respect to issuing updated model notices as needed. The guidance also makes some technical changes to the instructions, which will allow EBSA to amend the model notices as necessary and provide the most current versions on the department's website. This should also eliminate confusion from multiple versions of the model notices being available in different locations. EBSA simultaneously issued updated versions of the model general notice (also known as the COBRA initial notice, which must be provided within 90 days of when an employee and spouse first become covered under the plan), as well as an updated version of the model election notice (which must be provided within 44 days upon both a loss of coverage and a triggering event, such as termination of employment).
Although this is only proposed guidance, the DOL and EBSA will consider use of the model notices available on its website, appropriately completed, to be good faith compliance with the notice content requirements of COBRA until rulemaking is finalized and effective. Therefore, the model notices may be used effective immediately.