These rules affect the content and delivery of all of the following:

• The General Notice of COBRA Continuation Coverage Rights
• An employer’s notice of qualifying event
• Notices for employees and qualified beneficiaries
• The COBRA Continuation of Coverage Election Notice
• Plan administrator’s notices, including the Termination Notice and Unavailability Notice

• In addition to information regarding COBRA, California employers need to provide information relating to extension of benefits under Cal-COBRA. California employers should use the modified California versions of the federal COBRA notices, which contain information about Cal-COBRA for California employees. The federal model versions do not contain information specific for California employers.

General Notice of COBRA Continuation Coverage Rights

The General Notice of COBRA Continuation Coverage Rights (formerly referred to as the Initial Notice) must be provided to each employee and spouse within 90 days of the date that coverage begins or the first date on which the plan administrator is required to advise a qualified beneficiary of the right to choose continuation coverage, whichever comes first. If a qualifying event occurs within the first 90 days of coverage, but before the General Notice has been provided, it is sufficient to provide the election notice only.3 This notice generally describes COBRA rights.

The content of the General Notice can be included in the Summary Plan Description (SPD) or the HMO Explanation of Coverage (EOC). If the SPD or EOC with the General Notice content is provided to the employee and spouse within 90 days of coverage by the plan, it is unnecessary to deliver a separate General Notice.

CalChamber provides two versions of a model General Notice, both of which comply with COBRA:

• The General Notice of COBRA Continuation Coverage Rights - Outside California is to be provided only for employees outside the state.
• The General Notice of COBRA Continuation Coverage Rights - California Employees includes information required as a result of the Cal-COBRA extension of continuation coverage and should only be provided for employees in California.

• General Notice of COBRA Continuation Coverage Rights - Outside California
• General Notice of COBRA Continuation Coverage Rights - California Employees

The General Notice must be provided to the employee and spouse:

• If mailed, it must be mailed separately to each unless, at the time it is provided, the plan has records indicating the employee and spouse live at the same address. In that case, the notice must be addressed to both the employee and spouse.
• If spousal coverage begins after the employee’s coverage, a separate notice must be given. For example, if the employee divorces and then remarries, the new spouse must be given separate notice upon commencing coverage.
• If the employee is given the General Notice personally, a separate copy must be mailed to the spouse. Separate notice need not be given to dependent children.

You may be liable to people other than the employee if you fail to properly notify them of their rights under COBRA.

Example: In one case, an employee’s wife was not given notice of her COBRA rights at the time she and the employee divorced. She did not receive an initial notice of COBRA rights when her husband became covered by the employer’s group health plan. The employer terminated her health insurance coverage at the time of the divorce. The court ruled that a spouse should always receive actual notice about their rights to continuation of coverage.

Even though the employee did not notify the employer of the divorce (qualifying event) within the 60-day period required to elect COBRA coverage, the court determined that the failure to send the initial notice was improper and that the wife could pursue a legal claim against the employer.4

This case may well have been less costly to the employer if the employer provided a copy of the initial COBRA notice and a copy of the plan’s SPD to the spouse within 90 days of the employee initially becoming covered by group health coverage.

COBRA Notice to Plan Administrator

A group health plan must offer continuation coverage when a qualifying event occurs. The group health plan is not required to act until it receives appropriate notice of the qualifying event.

You must notify the plan administrator within 30 days of an employee’s loss of coverage due to termination, reduction in hours, death, Medicare entitlement or your bankruptcy event.5

COBRA does not require any special format for the notification, but does specify that the contents of the notice must enable the plan administrator to clearly identify the plan, the covered employee, the qualifying event and the date of the qualifying event.

The COBRA Notice to Plan Administrator will satisfy these requirements for plans in and outside California.

• COBRA Notice to Plan Administrator

COBRA Notice From Employees and Qualified Beneficiaries

COBRA requires employees or other qualified beneficiaries to notify the plan administrator (who may or may not be the employer) within 60 days of the following qualifying events to be eligible for COBRA:

• Divorce or legal separation of a covered employee from a spouse.
• Termination of coverage as a dependent child.
• The SSA’s declaration of a qualified beneficiary’s disability.
• The SSA’s termination of a qualified beneficiary’s disability status.6

COBRA permits an employer or plan to establish reasonable procedures for giving these notices, including specific forms that must be used.7 The plan can set a different time limit, but it cannot be shorter than 60 days. Procedures will be considered reasonable if they meet all of the following criteria:

• Are included in the SPD.
• Specify the individual or entity to receive the notices.
• Specify the means by which the notices can be given.
• Describe the information on the qualifying events that must be included.
• Provide a reasonable time period for providing notice, which cannot be less than the minimums contained in the regulations implementing COBRA.8

As a result, employers and plans can now avoid some contested notification issues by specifying procedures and forms that employees must use. If an employer or plan does not specify procedures and forms to use, qualified beneficiaries can give any type of verbal or written notice identifying a qualified event to the person or entity that customarily handles your employee benefit matters, including your insurance company, a third-party administrator or any officer of the insurance company or third-party administrator.9

COBRA Continuation Coverage Election Notice

After the plan administrator receives notice of a qualifying event, the administrator must notify the qualified beneficiaries of their COBRA rights within 14 days.10 If you are the plan administrator, the notice must be sent no later than 44 days after the date coverage is lost or the date of the qualifying event, whichever the plan requires.11

On May 4, 2020, the U.S. Department of Labor (DOL) and Department of the Treasury extended COBRA election and notice deadlines due to the COVID-19 pandemic. The deadline extensions are based on the “Outbreak Period,” which the federal government defines as the time that runs retroactively from March 1, 2020, until 60 days after the end of the President’s COVID-19 national emergency declaration, or until the DOL and the Treasury determine the end date. This means that while the outbreak period continues, health plan administrators don’t have to issue COBRA notices within the 14-day deadline. However, once the outbreak period ends, health plan administrators have the 14-day deadline.

CalChamber provides two versions of a model election notice, both of which comply with the regulations:

• The COBRA Notice to Plan Administrator will satisfy these requirements for plans in and outside California.
• The COBRA Continuation Coverage Election Notice - California Employees includes information required as a result of the Cal-COBRA extension of continuation coverage and should only be provided to employees within California.

• COBRA Continuation Coverage Election Notice - Outside California
• COBRA Continuation Coverage Election Notice - California Employees

Notification by regular U.S. mail is sufficient. If you choose to send registered mail and request a return receipt, you should still send another copy through regular mail. This ensures that you satisfied your obligation to provide notice if the recipient fails to receive and sign for the copy sent via registered mail.

• If the employee and spouse live at the same address, a single notice can be sent. But it must be addressed to both and is considered notice to covered dependents.
• Hand delivery to the employee at work is considered notice to covered dependents living with the employee. If hand delivered to the employee at work, a separate notice must be sent to the spouse even if living at the same address.
• If the covered employee and their spouse do not reside at the same address, send a separate notice to the spouse. You can ask the employee for this address or if this is not possible, send the notice to the last known address.
• Notice to the spouse is considered notice to all other beneficiaries residing with the spouse.12
• Include current copies of all SPDs or an EOC with the notice.
• Enclose the COBRA Rights - Acknowledgment of Receipt of Notification for any covered employee plus other family members. State that the employee’s coverage is ending due to termination of employment or reduction in hours or other qualifying event.
• Keep dated copies of all notices sent, including addresses and methods by which they were sent.

• COBRA Rights - Acknowledgment of Receipt of Notification

Failure to provide the appropriate COBRA election form to all qualified beneficiaries on a timely basis creates significant legal liability.

Individual insurance companies and HMOs often require that COBRA qualified beneficiaries complete additional forms. Check with your providers. If this is the case, enclose those forms and instructions for their completion with the notice.

1. 29 U.S.C. 1166(a)(1)