CASE CAPTION GOES HERE
QUALIFIED MEDICAL CHILD SUPPORT ORDER (1)
At a session of this Court, held in the City of ___________ , County of ______________ , State of Michigan on ____________________________ , 199__.
Present: Hon. _____________________________ , Circuit Court Judge.
This Court having rendered a Judgment of Divorce on __________________, and the provisions of that judgment having incorporated by reference the terms of this Qualified Medical Child Support Order ("QMCSO"), so that this QMCSO is part of and merged into that judgment of divorce, (2) and this Court being fully advised in the premises;
THEREFORE, IT IS ORDERED:
1. This order is intended as a Qualified Medical Child Support Order ("QMCSO") under the federal Employee Retirement Income Security Act of 1974 ("ERISA") § 609, 29 USC § 1169. It orders the Medical Plan below to provide medical benefits to the children of the parties (termed "Alternate Recipient(s)"). (3)
2. The Medical Plan subject to this order is:
a. Name: (4) _________________________________________________________
b. Plan Administrator and his/ her address, telephone with area code, and FAX:___________________________________________
3. The current employer offering the Medical Plan is:
a. Name: __________________________________________________________
b. Address and telephone with area code: ___________________________________________________________________
c. Federal Employer Taxpayer Identification Number (T.I.N.): ___________________________________________________________________
d. The employer's group number under the Medical Plan is: (5) ___________________________________________________________________
4. The Plan Participant is:
a. Name: ___________________________________________________________
b. Social Security Number: _________________________________________
c. Date of Birth: __________________________________________________
d. Address and telephone with area code: ____________________________________________________________________
e. The identification number of the Plan Participant used by the Medical Plan is: (6) ____________________________________________________________
5. The parent not participating or not eligible to participate in the Medical Plan (non-participant parent) is:
a. Name: ___________________________________________________________
b. Social Security Number: _______________________________________
c. Date of Birth: _________________________________________________
d. Address and telephone with area code: ___________________________________________________________________
6. The children of the parties who are designated as Alternate Recipients for this QMCSO are:
|Social Security Number|
|Date of Birth|
|Address and telephone with area code|
7. Designated Recipient: As the non-participant parent, _________________, is the Designated Recipient for purposes of receiving copies of all mailings and notices from the Medical Plan to the Alternate Recipients.
Enrollment and eligibility:
8. Non-participation in the Medical Plan: If the parent/employee who is otherwise eligible as a participant in the Medical Plan as the Plan Participant is not currently enrolled as the Plan Participant, this QMCSO shall function as the legal authority to enroll the children designated above as Alternate Recipients. Enrollment shall be completed within thirty (30) days of the entry of this Order. (7) This Order instructs one of the following to complete any paperwork required to facilitate the children receiving benefits: (i) the non-participant parent designated above who is not the Plan Participant, (ii) the Michigan Department of Social Services (as the state Medicaid agency), or the Friend of the Court in ________________ County, as the child support enforcement agency administering 42 USC §§ 651-669. (Ref.: 42 USC §§ 1396(a)(60), 1396g-1) The Plan Participant may also complete the paperwork.
9. Enrollment period: If the effective date of this Order does not coincide with a normal open enrollment period in the Medical Plan, the Plan Administrator shall nonetheless enroll the Alternate Recipients.
10. Effective date of coverage: The Medical Plan shall provide coverage to the Alternate Recipients as of the date of entry of this Order.
11. Continuation of coverage: If the Plan Participant/ employee withdraws from the Medical Plan or lets coverage lapse, but is still employed by the employer or otherwise eligible to participate in the Medical Plan, coverage of the Alternate Recipients under the Medical Plan shall continue. Coverage of the Alternate Recipients shall continue even if some but not all of the Alternate Recipients become ineligible for coverage, unless the employer abolishes the Medical Plan itself. If the Plan Participant voluntarily leaves his or her employment or is terminated and, therefore, is no longer eligible for coverage under the Medical Plan, the Plan Administrator shall send appropriate notice to the Designated Recipient under COBRA. (8)
12. Factors not affecting status as an Alternate Recipient or the level of benefits available: In accordance with ERISA § 609, the following conditions or facts shall not affect either an Alternate Recipient's ability to receive benefits under the Medical Plan nor the level of these benefits, and are included by way of illustration and not limitation:
a. having been born out of wedlock;
b. having been adopted by one or both of the parents;
c. not being declared as a dependent on the Plan Participant's federal tax return;
d. not residing with the Plan Participant in the Medical Plan's or insurer's geographical or catchment area; (9)
e. being eligible or participating in Medicaid; or
f. being an adopted or a natural born child, or having been placed for adoption, and having pre-existing medical conditions. (10)
13. Period of coverage: Each Alternate Recipients shall be eligible to receive the benefits from the current Medical Plan or its successors, including changes in employer or insurer, as long as he or she is under the age of 18 years or until he or she reaches the age of 19 ½ if the child is regularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school, and as long as he or she is receiving child support from the Plan Participant in conformity with any order of this Court pursuant to the parties' divorce. (11) Accordingly, this QMCSO shall terminate on _____________________________ [date].
Description of coverage:
14. Name and type: The current Medical Plan is the _____________________ and is a _____________________________________ [PPO, HMO, indemnity plan, etc.]. (12)
15. Coverage: The current Medical Plan covers the services detailed in the Summary Plan Description (SPD), dated ______________________, and which is available to the Designated Recipient upon written request to the Plan Administrator. (13) These services include by way of illustration and not limitation the following: _____________________________________
16. Exclusions: This QMCSO excludes benefits that are not part of the Medical Plan's benefit structure, unless required by a statute relating to medical child support described in section 1908 of the Social Security Act, 42 USC § 1396g-1, in accordance with ERISA § 609.
Future changes and transitions:
17. Changes in the Medical Plan's organizational structure or insurer: Changes in the organization structure of the Medical Plan (e.g., from HMO to PPO to indemnity) or changes in insurer (e.g., Blue Care Network to Care Choices) that affect all plan participants of the employer shall not alter the force and effect of this QMCSO in requiring the Plan Participant to provide for medical and health benefits for the Alternate Recipients. The Designated Recipient shall select on behalf of the Alternate Recipients the Medical Plan with the best coverage or the one that provides the most comparable policy. The Plan Participant in turn shall inform the Plan Administrator of the Designated Recipient's choice of Medical Plan and shall indicate this choice on official Medical Plan documents. (14)
18. Changes in the Plan Participant's employer: The Plan Participant is required to continue any medical and healthcare coverage at any employer in a manner consistent with the purpose and the terms of this QMCSO. The Designated Recipient shall select on behalf of the Alternate Recipients the Medical Plan with the best coverage or the one that provides the most comparable policy. The Plan Participant in turn shall inform the Plan Administrator of the Designated Recipient's choice of Medical Plan and shall indicate this choice on official Medical Plan documents.
19. Changes in the Medical Plan's benefits: Benefit changes necessitating a new description of benefits and service provided shall not affect the legal status of this QMCSO as to its basic purpose and requirements. Again, the Designated Recipient shall select on behalf of the Alternate Recipients the Medical Plan with the best coverage or the one that provides the most comparable policy. The Plan Participant in turn shall inform the Plan Administrator of the Designated Recipient's choice of Medical Plan and shall indicate this choice on official Medical Plan documents.
20. Transitions between this QMCSO and COBRA: Where the Plan Participant leaves his or her employer and becomes eligible for continued healthcare coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub, L. No. 99-272 ("COBRA"), the Plan Participant must inform the Alternate Recipients of the change in employer (via a written notice to the Designated Recipient) within thirty (30) days after being discharged or after giving oral or written notice to the employer. (15) The Plan Participant shall take all steps necessary to make continued healthcare coverage available to the Alternate Recipients, including assumption of the COBRA premiums. To the extent possible, the Plan Participant shall keep the most complete or most comparable benefits during transitions from COBRA to another employer with a different Medical Plan. On behalf of the Alternate Recipients, the Designated Recipient shall select the new Medical Plan with the best coverage or the one that provides the most comparable policy. The Plan Participant in turn shall inform the Plan Administrator of the Designated Recipient's choice of the new Medical Plan and shall indicate this choice on official Medical Plan documents.
21. No disenrollment of an Alternate Recipient: The Plan Administrator shall not disenroll an Alternate Recipient unless comparable coverage without any lapse in coverage can be provided to the Alternate Recipient, or unless this Court order is no longer in effect, or unless the Alternate Recipient is no longer eligible for coverage under the Medical Plan. Where the employer initiates a cafeteria plan with a choice of health care coverage, the Designated Recipient shall select on behalf of the Alternate Recipients the Medical Plan with the best coverage or the one that provides the most comparable policy. The Plan Participant in turn shall inform the Plan Administrator of the Designated Recipient's choice of Medical Plan and shall indicate this choice on official Medical Plan documents.
Payment of monies:
22. Responsibility and bankruptcy of employer: The Plan Participant or his or her employer are responsible for paying the insurance premium to the Medical Plan. Should the employer file for bankruptcy and discontinue healthcare coverage under the Medical Plan, the Plan Participant is required to make timely premium payments until the employer resumes payment.
23. Unreimbursed healthcare expenses: These expenses are payable according to the order entered by this Court,_______________________ (16) as modified by any subsequent order of this Court.
24. Reimbursement of out-of-pocket expenditures: The Plan Administrator shall make payments payable under this QMCSO to the non-participant parent (also the Designated Recipient for Medical Plan notices) for reimbursement of out-of-pocket medical expenses; the Plan Administrator shall mail payments under this QMCSO to the Designated Recipient.
25. The Plan Administrator can withhold from the wages of the Plan Participant money owed to a provider of services, when the Plan Participant has received payments for medical costs for the benefit of an Alternate Recipient but has not reimbursed the non-participant parent or provider of services. The Plan Administrator shall act on written notice and documentation from the non-participant parent.
Status of this order as a Qualified Medical Child Support Order:
26. Determination by Plan Administrator: The Plan Administrator shall notify the Plan Participant and each Alternate Recipient within sixty (60) days as to whether this order comports with or does not comport with ERISA § 609, 29 USC § 1169 and as to whether or not it otherwise qualifies as a QMCSO. (17)
27. Automatic interim status as a MCSO: This Order will automatically become a Medical Child Support Order ("MCSO"), if it does not qualify as a qualified MCSO ("QMCSO"), as the result of failing to meet some of the requirements of ERISA §609. The parties agree to do whatever is feasible to revise this Order so that it becomes a fully qualified MCSO (QMCSO) in accordance with the provisions of the Medical Plan and in accordance with § 609 of ERISA, 29 USC § 1169. This Order is automatically a MCSO and not a QMCSO if the Medical Plan is not subject to Title I of ERISA or if it is an employee welfare benefit plan.
28. Termination: This QMCSO shall terminate on _____________________ [date].
IT IS ORDERED:
Circuit Court Judge
I approve the above order as to its form.
Friend of the Court
1. Drafter's note: The author wishes to thank Denise Fawcett, Nancy Keppelman, and Margo Nichols for their comments in improving this model QMCSO. The overall purpose of a QMCSO is to allow the parent with the better healthcare coverage to provide his or her superior benefits to the minor children, when these children live with the other parent and are not dependents on his or her personal income tax return. In other words, no longer need parents be restricted to the healthcare coverage of the custodial parent. The law allowing QMCSOs is new and future changes and clarifications are likely. Attorneys will have to negotiate with Plan Administrators over some provisions because of this uncertainty and novelty.
2. Drafter's note: A judgment of divorce is not necessary for a QMCSO. A QMCSO can also be entered during or following a paternity suit or a custody suit, for example. The better reasoning is to merge a QMCSO into a previous judgment. This allows the QMCSO to be enforced or modified under MCR 2.612 rather than only by a separate suit for breach of contract.
3. Drafter's note: Because as of late 1994 Michigan has not amended its laws to be in conformity with ERISA § 609, and because a QMCSO is new to most Plan Administrators, certain paragraphs in this "model" QMCSO (e.g., nos. 11-12, 17-21 & 25) may need to be modified or dropped in the short term so as to obtain the Plan Administrator's approval, even though the ERISA language is clear. Also this section of ERISA does not yet have regulations.
4. Drafter's note: Be as specific as possible about the name of the plan. One can use the Employer's internal reference code, e.g., "Plan #305, Health Alliance Plan, Coverage Option 2."
5. Drafter's note: While ERISA § 609 does not require this number, it will assist the Plan Administrator in identifying which coverage is applicable, especially where the employer has a cafeteria plan and more than one type of plan or group is available to each employee. The Plan Participant should have an identification card which specifies his or her identification number, benefit code(s), and the group number.
6. Drafter's note: While ERISA § 609 does not require this number, it is helpful in identifying the specific coverage available.
7. Drafter's note: This mandatory enrollment applies even if the parent who is eligible to participate in the Medical Plan is not currently eligible to participate because enrollment is currently closed to employees in the group. ERISA does not specify a time period in days; this drafter selected 30 days.
8. Drafter's note: Under COBRA, the employer must tell the Plan Administrator of the termination of the employee within 30 days of termination. The Plan Administrator then tells the Designated Recipient of the termination within 14 days. The Designated Recipient next has 60 days in which to continue COBRA coverage.
9. Drafter's note: This particular Congressional mandate will be a major logistical headache for HMO's and PPO's that provide for non-emergency coverage only at specific sites within specific catchment areas. For example, the Social Security Act mandates that a Michigan HMO or PPO cover a child and provide full benefits to a child living in California with the non-participant parent. 42 USC §§ 1396(a)(60), 1396g-1. Plan Administrators may not approve a QMCSO with this language because of the logistical difficulty involved for the Medical Plan.
10. Drafter's note: ERISA § 609, 20 USC § 1169(c)(2, 3), states that pre-existing medical conditions are covered only in the case of adopted children or children who have been placed for adoption. The distinction between adopted and natural born children for the coverage of pre-existing medical conditions is suspect and may very well be unconstitutional (paralleling distinctions between legitimate and illegitimate children, for example). The proper (aggressive?) stance is to insist that no pre-existing conditions will deter coverage for any Alternate Recipient.
11. Drafter's note: This allows health care benefits to continue if the judgment of divorce provides for college tuition payments, etc., after age 18. Plan Administrator's need a specific date for termination of the QMCSO for administrative reasons; therefore, include the longest possible future date, e.g., when the last child turns 19 ½.
12. Drafter's note: Be as specific as possible about the name of the plan. One can use the Employer's internal reference code, e.g., "Plan #305, Health Alliance Plan, Coverage Option 2."
13. Drafter's note: On the one hand, this paragraph could be viewed as superfluous where the name of the Medical Plan, the insurer, and the group number specify the exact coverage available. On the other hand, one may wish to attach to this QMCSO the Medical Plan's descriptive pamphlet or its SPD or merely to specify the categories and types of services covered. In listing the categories and types of services covered generally, there may be an incomplete description of benefits. An argument could ensue as to whether benefits not listed or described in the QMCSO are available to the Alternate Recipients. Although the better reasoning would be that the Plan Description would control over the QMCSO's description, it may be best to reference the SPD.
14. Drafter's note: Where Plan Administrators require that the Plan Participant officially make the choice of which of several medical plans to provide coverage, this language allows the Designated Recipient to be informed of the choice and to make the real choice for the Alternative Recipients. The "official" choice would then be made by the Plan Participant. This language prevents the Plan Participant from choosing poorer coverage without notice to the Alternate Recipients. Similar language appears in paragraphs nos. 18-21 regarding changes and transitions in coverage. Because changes in employment or conversions to a different Medical Plan altogether need not be approved by the Plan Administrator for a specific Medical Plan, these paragraphs could be removed from this QMCSO and inserted in the overall Judgment in order to facilitate the Plan Administrator's approval of the QMCSO.
15. Drafter's note: COBRA requires thirty days.
16. Drafter's note: Enter the name and date of the previous judgment of divorce or child support order, if applicable.
17. Drafter's note: Prepare a cover letter to the Plan Administrator which states that it will be assumed this order does comport with ERISA § 609 and will be accepted by the Plan Administrator if no word to the contrary is received. Note that under standard COBRA practice no response technically means that the order has been rejected. Despite COBRA practice, given that a QMCSO is new, such a cover letter may spur the Plan Administrator to make a formal reply.