Given recent and temporary changes to continuation healthcare coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which were complex enough, add just one more wrinkle to the mix, and many of our subscribers are flummoxed. Here’s a sampling of their questions and the answers our legal experts provided.

Q: Does an employee have to be participating in the employer’s group health plan to qualify for COBRA when he terminates? He is leaving voluntarily.
A: Under COBRA, a “qualified beneficiary” is someone who, on the day before a “qualifying event” is covered by an employer-provided group health plan. The person may be a covered employee, his or her spouse, or a dependent child. In this case, the qualifying event would be the employee’s termination. And, the mini-COBRA law covering small employers in your state contains the same principle. Since COBRA is meant to mimic and continue existing coverage, it is not available to individuals who weren’t covered by the employer before termination.

Q: Is reaching the end of leave under the Family and Medical Leave Act a COBRA-qualifying event?
A: Taking FMLA leave is not necessarily a qualifying event to trigger COBRA’s notice requirements. A qualifying event occurs only if 3 conditions are met:

• The employee (or spouse or dependent) is covered on the day before the first day of FMLA leave (or becomes covered during the leave) by the employer’s group health plan.
• The employee does not return to work at the end of the leave.
• The employee would, in the absence of COBRA, lose coverage under the health plan before the end of the maximum coverage period provided by COBRA.

If all three conditions are met, then the last day of FMLA leave is a qualifying event for COBRA. The maximum COBRA period is generally measured from the date of this qualifying event.

Q: A former employee who was on COBRA has passed away. Her husband was enrolled as her dependent. Can he remain on COBRA? Must I fill out special forms?
A: The death of the former employee during the initial 18 months of COBRA coverage is a second qualifying event and extends the maximum COBRA coverage period to 36 months. Because this is a new qualifying event, an election notice should be sent. Other second qualifying events include divorce or legal separation from the covered employee or a child ceasing to be a covered dependent because of age. If a second event occurs during an 18- or 29-month COBRA period, the qualified beneficiary who is a spouse or dependent child is entitled to continue COBRA coverage for a maximum of 36 months measured from the first qualifying event.

Q: Is the birth of a child a second qualifying event under COBRA?
A: No, it is not. A child born or placed for adoption during the COBRA period is a qualified beneficiary. Thus, COBRA participants must be allowed to change their coverage status upon the birth or adoption of a child so that the child is covered for the balance of the continuation period. The length of the child’s COBRA coverage is measured from the date of the original qualifying event.