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This Web site contains a compilation of more than a thousand consumer finance  columns written by Tony Novak from the 1980s through 2006, updated and reformatted for maximum usefulness today.  New material was added after 2010.

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COBRA legal claim

originally posted: 11/22/2006  reposted: 2/18/2011 This post has not been recently reviewed or revised by the author and may be out of date. If you notice an error or are in doubt, please send a new question by email or ask for an update. Email

Q: My wife became eligible for benefits on April 5, 2004. She was terminated on April 14, 2004. She received no COBRA notification. She is suing for disability discrimination because she had cataracts and no reasonable accommodation was provided AND she was terminated three days before her scheduled cataract operation AND received no COBRA notification. My insurance paid for about 80% of the costs. Is there a statute of limitations for suing and collecting a fine? I heard that the federal statute was: 1) non-existent and up to the individual states and that the NY state statute was 2 years. 2) three years. Which (if either) is correct? Could this filing be done pro se in federal court? Is there a good precedent case that could be used as a template?

A: The practical limitations may override the legal issues in this situation. The important issue is not the statute of limitations, but rather that because of the delay in enrollment, you would be required to pay for all 18 months of the back premiums at once within 45 days of the time you first request enrollment in the COBRA plan. The premium payments could be far more than the expected benefit that you may receive from the insurance. As a practical matter, this eliminates most "late" COBRA enrollments. Although legal remedies are specified in the law, COBRA difficulties are generally worked out at an administrative level, not in the courts. The penalty is only applicable if the insurer refuses to accept the enrollment after the applicant makes application and tenders payment of the premium money. In your case, it seems likely that the insurer was never even aware of that your spouse was an eligible employee if she was not actually enrolled in the health plan. There is no basis for a lawsuit regarding denial of benefits until after you make a written application for benefits as specified in your policy . (The only imaginable basis for a successful lawsuit seems to be possible at this time would be if you had applied for COBRA benefits, the insurer did not respond to your request and a notification from the Department of Labor based on your complaint. That seems unlikely). If you wish to proceed, your first step should be to notify the insurance company of your intention to enroll in COBRA and to pay the back premiums. You notification should be by certified mail and include a notice that you did not receive earlier notification of enrollment rights. If you receive no response within a reasonable time, say 60 days, then notify the Department of Labor at the address listed at . It is highly likely that the insurer will enroll you in the COBRA benefit plan. You should be aware that successful COBRA lawsuits are very rare because of the very high rate of voluntary compliance by insurers. Even the treat of a lawsuit would cause the insurer to offer the benefit unless the facts were clear that there was no eligibility (for example, when the group health plan is cancelled).


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