Section Review

Health insurance for children of divorced and separated parents

Clare D. McGorrian is senior staff attorney for Health Law Advocates, Inc., a nonprofit, public interest law firm. McGorrian represents low-income consumers in Massachusetts in matters that involve access to affordable, quality health care. For more information about Health Law Advocates, visit www.hla-inc.org or call (617)338-5241.

Health insurance is a critical protection for all children. Yet children are at risk of losing health coverage when their parents separate or divorce. This article provides a brief review of laws and programs that can safeguard children from the loss of this essential protection.

State law requirements for medical child support

Every order or judgment for child support issued in Massachusetts must include a provision for health care coverage. G.L. c. 119A, ß 12(a). This requirement also applies to out-of-state orders or judgments received, entered or registered in Massachusetts pursuant to the Uniform Interstate Family Support Act, G.L. c. 209D.

The non-custodial parent (or "obligor") must provide health insurance for his or her children if it is available through an employer or is otherwise available at reasonable cost (i.e., non-group coverage). G.L. c. 119A, ß 12(b)(5). The non-custodial parent bears the burden of proving that coverage is not available at reasonable cost. G.L. c. 119A, ß 12(d). Parents may agree in writing that the custodial parent will provide health care coverage, or that coverage will be provided in some other manner. G.L. c. 119A, ß 12(b)(5).

Child support guidelines

Section IIG of the Massachusetts Child Support Guidelines (Administrative Office of the Trial Court, as amended Feb. 15, 2002) governs determinations of medical child support, unless their application would be unjust and not in the best interests of the child. If the non-custodial parent provides health coverage for the child, she or he receives a reduction in her or his support obligation, equal to one half of any additional cost incurred. If the custodial parent provides coverage, she or he is entitled to additional child support in the amount of one half of any additional cost for the insurance.

A judge can require the custodial parent to pay a certain amount for "routine" medical and dental expenses that insurance does not cover. (The presumptive threshold is $100 per child per year.) "Extraordinary" uninsured expenses (such as braces) are generally considered on a case-by-case basis, and the judge may adjust child support for such costs.

Duties of non-custodial parent's employer

A medical support order issued by a competent court is binding on the non-custodial parent's employer and on the insurer of the employer's health plan. G.L. c. 119A, ß 12. The plan may not deny coverage to a child named in the order on the grounds that:

a) The child was born out of wedlock;

b) The child is not claimed as a dependent on the obligor's tax return;

c) The child does not live with the obligor;

d) The child lives outside the plan service area;

e) The child is enrolled in Medicaid (MassHealth);

f) The child has a preexisting medical condition;

g) The child is adopted; or

h) The open enrollment period has ended.

G.L. c. 119A, ß12(l), (m); 29 U.S.C. ßß 1169(b)(2),(c)(1), (c)(2).

The plan may terminate coverage of a child named in a medical support order only if: a) the employer receives satisfactory written evidence that the order is no longer in effect or that the child will have comparable substitute coverage without any gap; or b) the employer eliminates family coverage for its employees. G.L. c. 119A, ß 12(l).

Qualified Medical Child Support Orders (QMCSOs)

The Qualified Medical Child Support Order, or QMCSO, is a creature of federal law. 29 U.S.C. ß 1169. Under Massachusetts law, a non-custodial parent's employer subject to a medical child support order must notify the custodial parent of any change in the child's health insurance coverage. The employer must also give the custodial parent all information necessary for the child to obtain benefits, and must accept claims from the custodial parent or medical provider without the involvement of the employee. G.L. c. 119A, ß 12(k). Unfortunately, due to federal preemption under ERISA, 29 U.S.C. ß 1001 et seq., some self-insured employers refuse to honor these state law requirements if the support order is not a QMCSO. As long as a state court medical child support order meets QMCSO requirements, however, every employer must honor it.

The QMCSO requirements are laid out in detail at 29 U.S.C. ß 1169. The following is a brief summary.

A QMCSO is a judgment, decree or order (including approval of a settlement agreement) issued by a state court of competent jurisdiction that:

a) Provides for child support with respect to a child of a participant in a group health plan;

b) Is made pursuant to a state domestic relations law;

c) Recognizes the right of the child as an "alternate recipient" to be enrolled in the plan;

d) Specifies the name and last known address of the participant;

e) Specifies the name and mailing address of the "alternate recipient";

f) Describes the coverage to be provided or the manner in which the coverage will be determined;

g) States the period to which the order applies; and

h) Does not require the plan to provide any benefit or option not otherwise provided under the plan, except as required to satisfy state medical child support enforcement laws.

Role of the state Department of Revenue

The Child Support Enforcement Division of the Department of Revenue (DOR) is charged with child support enforcement pursuant to Title IV, Part D ("IV-D") of the Social Security Act (42 U.S.C. ß 651 et seq.) and Mass. Gen. Laws c. 119A. Full IV-D services include collection and enforcement of the monetary and medical support provisions of the court support order. Under recent changes in the law, DOR will issue a National Medical Support Notice ("NMSN") to employers in all full IV-D cases, where the non-custodial parent is required to provide health coverage for the child, and the employer is known to DOR. See 65 Fed. Reg. 82154 (2000). An employer must treat a properly completed NMSN as a QMCSO. 29 U.S.C. ß 1169(a)(5)(C).

DOR has authority to transfer a medical support order from one employer to another. G.L. c. 119A, ß 12(c). DOR can enforce medical child support orders against the obligor parent, his or her employer or the employer's health plan insurer, in accordance with G.L. c. 119A, ß 12.

Private enforcement of child support orders

A private party may seek enforcement of a medical child support order against the obligor parent through contempt or other appropriate action. See, e.g., G.L. c. 209C, ßß 18, 19. Private enforcement action may also be taken against the obligor's employer or the employer's health plan insurer. An employer (or insurer) that receives notice of medical child support order but fails to enroll a child without reasonable cause may be liable for the medical costs incurred and attorneys' fees. G.L. c. 119A, ß 12(m).

COBRA

COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985), 29 U.S.C. ß 1161 et seq., permits the dependent child of a covered employee to receive 36 months of continued coverage after the parents' divorce or legal separation, provided the child was covered as of the day before this "qualifying event." Similarly, a child who ceases to be a dependent under the terms of a group health plan (e.g., turns 19), may also be eligible for 36 months of COBRA coverage. The child has an independent right to elect COBRA coverage, and may select a different option than other family members. 29 U.S.C. ß 1165(2).

COBRA applies to most private employers with 20 or more employees that have group health plans. 29 U.S.C. ß 1161(b). In addition, Mass. Gen. Laws ch. 176J, ß 9 ("mini-COBRA") requires fully insured employee group health plans of small employers (two to 19 employees) to offer COBRA-like continuation coverage to employees and their dependents. Information on COBRA can be found at www.dol.gov/ebsa; information on "mini-COBRA" can be found at www.state.ma.us/doi.

Non-group coverage

If a child cannot get group health insurance through either parent, he or she may be eligible for non-group coverage. A court may order the obligor parent to purchase such coverage under its authority to require medical support if health coverage is available at reasonable cost. More information about non-group plans is available at www.state.ma.us/doi or by calling 617-521-7777.

Public programs for children

If private health coverage is not available through either parent or by other means, there are a number of public programs that may be available to the child. Below is a brief summary of key programs with contact information. Some programs have limited enrollment or restricted eligibility. Applicants should confirm current rules by contacting the appropriate agency.

MassHealth (Medicaid)

MassHealth provides health care coverage to low-income individuals and families in Massachusetts, including children up to age 19 with income at or below 200 percent of federal poverty guidelines. In addition to income and residency requirements, applicants must meet immigration-status criteria.

In general, a custodial parent who seeks MassHealth coverage must assist the state in pursuing private health coverage through the non-custodial parent, unless there is "good cause" not to do so (such as abuse). 130 CMR 503.005. However, a child's eligibility for Medicaid may not be conditioned on the custodial parent's cooperation. 130 CMR 507.003(H).

The Division of Medical Assistance administers MassHealth. More information and applications are available at www.state.ma.us/dma or by calling 888-665-9993.

Children's Medical Security Plan (CMSP)

Children age 18 and younger who are over-income for MassHealth are eligible for CMSP, which covers primary and preventive care. Due to state budget restraints, CMSP closed enrollment in November 2001, and only admits new members when a slot opens up due to attrition. Current information can be obtained at www.cmspkids.com or by calling 1-800-909-2677.

Free Care

Major hospitals and community health centers in Massachusetts must provide free and reduced fee medical care to uninsured and underinsured people with limited incomes. Full free care is available for applicants with income up to 200 percent of federal poverty guidelines; partial free care for those with income between 200 and 400 percent of poverty level. Additional information on the Free Care program can be obtained at http://www.state.ma.us/dhcfp.

Medical Security Plan

The Medical Security Plan is open to Massachusetts residents who are approved for state unemployment benefits and their families, provided their income is below 400 percent of federal poverty. MSP helps pay COBRA premiums and provides direct coverage to eligible applicants who do not have access to COBRA. Blue Cross Blue Shield of Massachusetts administers MSP and can provide more information at 1-800-914-4455.

Conclusion

Health insurance provides essential protections for children. Family law practitioners should take steps to ensure that the benefits of health insurance coverage extend to children who are especially vulnerable due to their parents' divorce or separation.

©2014 Massachusetts Bar Association