The COBRA Election Notice and Election Form must be provided to qualified beneficiaries within 14 days from the date of the qualifying event or loss of coverage.

The Election Form should be signed and returned to the Personnel Office by the date reflected in the Election Notice/Election Form to confirm that COBRA continuation coverage has been elected. If the election form is not returned by the date reflected in the notice/form, then all rights to elect COBRA continuation coverage will end.

44-Day Notice Rule

The following information regarding the 44-day notice rule is provided to ensure that departments are aware of this provision within the COBRA statute. However, your department is not the Plan Administrator for the State’s benefit programs which means the 44-day notice rule will not apply. To ensure compliance of the COBRA statute notice requirements, the Personnel Office must provide the COBRA Election Notice and Election Form must to qualified beneficiaries within 14 days from the date of the qualifying event or loss of coverage.

Situation #1: Employer is also the Plan Administrator

When the employer is also the plan administrator, then the employer has a maximum of 44 days from the date of the qualifying event or loss of coverage to provide the election notice — 30 days as the employer plus 14 days as the plan administrator.

Situation #2: Plan Administrator is not the Employer

When the employer is not the plan administrator, then the employer has a maximum of 30 days to notify the plan administrator of a qualifying event or loss of coverage. After being notified by the employer, the plan administrator has a maximum of 14 days to provide the election notice.

Situation #3: Multi-Employer Plan Administrator

A multi-employer plan is a plan to which more than one employer is required to contribute, and is maintained pursuant to one or more collective bargaining agreements between employee organization(s) and the employers. In other words, a multi-employer plan covers employees of more than one employer.

When the plan is a multi-employer plan, then the election notice should be provided within 14 days from the date of the qualifying event or loss of coverage. Multi-employer plan administrators are allowed more than 14 days to provide the election notice, if specified in the plan rules.

Note: Departments are advised that in order to utilize the 44-day notice rule, you must be both the employer and plan administrator. However, it may not be reasonable in every situation for an employer who also acts as plan administrator having the benefit of a full 44 days to provide an election notice. In some circumstances, the employer/administrator might be allowed only 14 days in which to provide the required COBRA notice. For example, one federal court case concluded that an employee that suffered from a chronic illness should not have to wait more than 14 days to be provided an election notice. This created a serious medical hardship for the employee, regardless of the fact that coverage was eventually made retroactive.

Single Notice Rule

A single notice sent first class mail to the last known address, is considered good faith compliance. The notice must be addressed to the employee, spouse and domestic partner. Notification to the covered spouse or domestic partner is deemed notification to the covered dependent children who reside at the same address (including any dependent children covered in the future). The parent or legal guardian of minor children can elect on their behalf. A separate notice is required when the Personnel Office is aware that qualified beneficiaries reside at a different address. Keep a copy in file of the actual notice sent.

Court Orders

If a Personnel Office receives notification of a qualifying event that requires an offer of continuation coverage to a child or spouse of an employee, then an election notice and election form must be sent.

Dependent Child: Send election notice and election form to the custodial parent or guardian (“in care of the child”) or agency that provided notification of the qualifying event (as a substitute, if child’s address is unknown).

Spouse: Send election notice and election form to the spouse or agency (“in care of the spouse”) that provided notification of the qualifying event (as a substitute, if spouse’s address is unknown).

Approved Notice Delivery Methods

The COBRA statute disclosure regulations require that notices must be furnished using “measures reasonably calculated to ensure actual receipt of the material”. The following are examples of acceptable distribution methods (first-class, second- or third class mail, certified mail, hand-delivery, and electronic disclosure).

Mail Delivery

First Class Mail

First class mail is the evidentiary requirement. Proof of receipt is not required. A notice is presumed to have been received if mailed by first class mail to the last known address. There is a “presumption of receipt”. However, the Personnel Office must be able to prove that the notice was sent in a manner that it is presumed to have been received or was reasonably calculated to be received by the qualified beneficiary. Reported non-compliance court cases generally conclude that, proof that the notice was mailed is more essential than, proof that the qualified beneficiary actually received the notice.

Second and Third Class Mail

Although second and third class mail delivery (current postal terms are “Periodical and Standard Mail A) is acceptable, these postal classes do not provide the same guarantees regarding forwarding and return of mail, as does first class mail. Based on these types of inconsistencies, the tested and court approved first class mail delivery is recommended.

Certified Mail with No Return Receipt or First Class Mail with a Certificate of Mailing

Certified Mail with No Return Receipt or First Class Mail with a Certificate of Mailing (with post office date stamp) is recommended, but not required. Departments should be aware that Certified Mail Delivery with Return Receipt might cause problems when determining the 60-day election period. As explained above, the Personnel Office is required to prove that the notice was mailed, not its receipt.

To prove that the notice was sent, the Personnel Office should maintain a copy of the notice actually sent (reflecting the name and address where the notice was sent) and maintain evidence that the mailing practice was followed for each notice sent.

Hand Delivery

If the election notice is provided to an employee by hand delivery, have the employee sign a statement acknowledging receipt of the notice. The election notice can only be hand delivered to an employee and not to the employee's spouse, domestic partner, or dependent children. Hand delivery is not notification to a covered spouse, domestic partner, or dependent children. The Personnel Office is required to send a separate notice to the employee's spouse or domestic partner.

Electronic Delivery

If the disclosure requirements are satisfied and measures in place (including e-mail and other Internet based methods) that ensure actual receipt of the initial notice, then the use of electronic delivery is allowable. However, conditions which may not allow the use of electronic delivery include employees, former employees, covered spouses, domestic partners, or dependent children who do not have access to the department’s system (Even in situations where the Personnel Office has obtained permission from the employee, former employee, spouse, or domestic partner, to receive a notice at a particular home e-mail address, it cannot be assumed that they share an e-mail address).

COBRA Election Notice Log