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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118806
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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We are participants in a Retiree Health Care Plan that has

Customer Question

We are participants in a Retiree Health Care Plan that has two different COB clauses. One clause for the under 65 individuals recites that the plan pays full supplemental benefits after the Primary Plan pays; the other for 65+ Medicare-eligible individuals says the same as the under 65 clause AND describes a non-duplication process. The TPA follows the non-dup wording for all 65+ participants. Two questions: is confusing and misleading language a violation of the ERISA standard that says the SPD should contain language "calculated to be understood by the average plan participant"? Ans secondly, even though plans are permitted to pay a lower benefit to 65+ participants due to the imposition of Medicare, isn't the existence of two separate COB clauses in the same plan a de facto violation of ADEA?
Thank you.
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
You would bear the burden of proof that the language is confusing to the reasonable person. So, you saying you are confused by the language is not enough, you have to show it is so similar that it confuses not just you but others. This is difficult to prove and requires witnesses and evidence.
As far as different benefits by age, the reason they are allowed to give different benefits based on age do not discriminate under the Age Discrimination laws is because those over 65 have medicare and SS benefits that pick up and as such the older citizens are not being penalized or discriminated against, they must take advantage of the medicare process and file for those benefits and as such the private insurance can have different rules.
Customer: replied 1 year ago.
I am very dissatisfied with the response. Obviously the burden of proof is mine re confusing language. And, as far as the impact of Medicare on COB, I told you the rules. I was looking for a comment about the existence of two different COB clauses in ONE PLAN ! Has anyone ever encountered two COB clauses in the same plan? Is this not de facto discrimination? The operation of a single COB clause in a retiree health plan can produce differing benefit payments which could give younger retirees higher benefits depending on a number of uncontrollable factors. BUT, when a plan has 2 COB clauses and they enforce the one that guarantees lower benefits for older retirees....Your comments provided nothing of value. My internet research and personal knowledge gave me more than you supplied.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
The reason we have a reply button is so customers can communicate with experts back and forth and tell the experts what more they want to know. Unless customers communicate back and forth with experts generally the dissatisfaction is because of the failure of the customer to communicate with their expert.
Now, there are USUALLY multiple COB in one plan, because a plan can have different benefits based on age. In fact, I just dealt with a plan where the plan notified an employee who was turning 65 they had to apply for medicare to avoid having the policy cancelled and also to avoid the medicare penalty. It is not illegal to have the COB being different if there is a qualification status of age. So they could not enforce the COB designed for those under 65 against someone over 65, so I do not know how that could confuse you or anyone else.
As I said the reason for the two COB is to make sure those who are 65 or older and eligible for medicare file for their medicare benefits. It is not against the law or ERISA for them to do that or to have such dual COB.