Divorce Mediation Blog

Post-Divorce Health Insurance in For Same Sex Spouses: One More Reason to End DOMA

Wednesday, June 12, 2013

In a previous entry, we discussed the “self-insured” loophole to the Massachusetts insurance laws that otherwise require extension of medical benefits beyond federal "COBRA" benefits to ex-spouses. If a family is unlucky enough to have employer coverage where risk of loss remains the employer’s, rather than an insurer’s, these benefits do not apply; and the parties must default to the less generous COBRA.

As difficult as this is for families who depend on self-insured employers, the result is even more draconian for same sex ex-spouses. This is because the existing federal Defense of Marriage Act (DOMA), does not recognize legally married couples of the same gender (now including ten states and D.C.) as spouses, at all. Since spousal COBRA rights require a federally recognized marriage, divorced same sex spouses with self-insured employers here remain uncovered by any spousal continuation benefits.

Beyond simple unfairness, this undermines the policy of the 2012 Affordable Care Act, as it becomes fully operative in 2014: just one more reason to hope that the United States Supreme Court strikes down DOMA.


Post-Divorce Health Coverage: Whatever happened to the Qualified Medical Child Support Order?

Wednesday, May 15, 2013

Post-Divorce Health Coverage: Whatever happened to the Qualified Medical Child Support Order?

In a recent case, the parties were having problems with the flow of medical benefits, paper, information and cash. As they discussed remedies, it occurred to me "What about a "QMSCO"? I hesitated to raise it, concerned that the lawyers involved just might not have ever heard of one. I was fairly certain neither had ever used one of these obscure federal instruments. I was right on the second point.

The Qualified Medical Child Support Order was created by Congress in a 1993 amendment to ERISA. It established the obligation of employment based retirement plans to extend medical insurance coverage to dependent children of participant employees as a matter of federal law. While this basic policy was not new to Massachusetts, some of the structural aspects of the law were new here.

For example, with a QMSCO in place a medical insurance carrier can be required to recognize the rights of an alternate payee. In other words, if a state divorce judgment requires that coverage extend to children after divorce, it shall be so as a matter of federal law, too. Then, to the extent that the state judgment vests responsibility children in a non-employee spouse, that spouse may then stand in for the employee as the beneficiary for logistical purposes. That is, the custodial parent becomes the recipient of claim forms, notice of benefit changes, application for benefits for a child and the recipient of any insurance reimbursements.

The effect of a QMSCO is to cut out the employee as conduit of paperwork and cash if the parties agree and/or the state court so orders. Efficiency and reduced need for interaction between ex-spouses seems the result. Gone, too, are the frustrations of medical carriers who refuse to speak with inquiring parents, saying that they will only speak to the employee.

We can count the number of QMSCO's that we have seen as lawyers, judge and divorce mediators on one of our hands. We wonder why?


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