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The Wagner Law Group

The Wagner Law Group is a nationally recognized practice in the areas of ERISA and employee benefits, estate planning, employment, labor and human resources and investment management.


Established in 1996, The Wagner Law Group is dedicated to the highest standards of integrity, excellence and thought leadership and is considered to be amongst the nation's premier ERISA and employee benefits law firms. The firm has seven offices across the country, providing unparalleled legal advice to its clients, including large, small and nonprofit corporations as well as individuals and government entities worldwide. The Wagner Law Group's 29 attorneys, senior benefits consultant and four paralegals combine many years of experience in their fields of practice with a variety of backgrounds. Seven of the attorneys are AV-rated by Martindale-Hubbell and six are Fellows of the American College of Employee Benefits Counsel, an invitation-only organization of nationally recognized employee benefits lawyers.  Seven of the firm's attorneys have been named to the prestigious Super Lawyers list for 2017, which highlights outstanding lawyers based on a rigorous selection process.




Contact Info

The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110


Washington, D.C.

Tel: (202) 969-2800


Fax: (202) 969-2568

 800 Connecticut Avenue, N.W.

Suite 810

Washington, D.C. 20006



Tel: (847) 990-9034

Fax: (847) 557-1312

190 South LaSalle Street

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Chicago, IL 60603



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Fax: (561) 293-3591
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Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

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Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

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San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
25 W. Moody Avenue
St. Louis, MO  63119 








   No New COBRA Election

Period for Incapacity

October 4, 2017




A California District Court, in Regents of the Univ. of Ca. v. Stidham Trucking, Inc., has ruled that while a COBRA election period may be tolled during a period of incapacity, being incapacitated for a period of time does not entitled the qualified beneficiary to a new 60-day election period.



Facts.  An employee voluntarily terminated his employment and was in an accident several weeks later.  He was hospitalized for 10 days and claimed to be incapacitated for the entire period of his hospital stay.  He assigned his insurance rights to the hospital where he had stayed.  Two years later, the hospital sued the employee's former employer, claiming that because of his incapacity, the employee had not received his legally-required, 60-day COBRA election period and demanded that he be given a new 60-day election period.




Law.  A qualified beneficiary must be given a COBRA election period that cannot end before the later of:


  • Sixty days after the date coverage would otherwise terminate because of the qualifying event; or
  • Sixty days after the date the qualified beneficiary is notified of the right to elect continuation coverage.


COBRA is silent on the question of whether the 60-day election period continues to run during a period when the qualified beneficiary is incapacitated. 




Court Decision.  The court recognized that an incapacity could deprive the qualified beneficiary of the opportunity to have at least 60 days during which to make an election.  Tolling the election period during the time that the beneficiary is incapacitated, or until the representative is appointed, would effectuate the objectives of COBRA to allow the qualified beneficiary (or his representative) at least 60 days in which to make an informed election, and allow the qualified beneficiary to elect retroactive coverage after the need for medical care arises within that election period.




However, the court ruled that "the [60-day] clock stops running when extraordinary circumstances first arise, but the clock resumes running once the extraordinary circumstances have ended."




In this case, that meant that the qualified beneficiary's election period was, at most 70 days. The plaintiff was not entitled to a new 60-day election period.   In addition, the court said that since the hospital only attempted to elect COBRA continuation two years after the employee received his COBRA notice, its claim was rejected, regardless of whether the employee had initially been incapacitated.




Employer Takeaway.  Employers should make sure that their COBRA administrators and/or their insurers are aware that most courts agree that the COBRA election period is suspended if a qualified beneficiary is incapacitated and unable, either personally or through an authorized representative, to make a valid COBRA election.














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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.