Wagner Logo

Follow us on Twitter View our profile on LinkedIn Like us on Facebook 




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

Suite 2100

Chicago, IL 60603



Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

Suite 600

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

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








    TPA's Recordkeeping Demonstrates Employer Met COBRA Notice Requirements

December 20, 2017




The Eleventh Circuit Court of Appeals, in DeBene v. Bay Care Health System, Inc., determined that an employer had met its COBRA notification requirements based solely on ample evidence of its established procedures for providing COBRA notices.


Law. COBRA requires employers to notify employees of their right to continue healthcare coverage following termination. Specifically, an employer is required to notify its plan administrator within thirty days of an employee's termination, and the administrator is required to provide a COBRA notice to the employee within fourteen days after receiving the employer's notification. (A total of forty-four days if the employer is also the plan administrator.) COBRA provides the employee with a private right of action to sue an employer if the employer fails to provide a COBRA notice to the employee. COBRA regulations require employers to use measures reasonably calculated to ensure actual receipt of COBRA election materials by plan participants.


Facts. In DeBene, the plaintiff worked for the employer from 2004 through 2014. Unbeknownst to the employer, the plaintiff also worked for two software firms that provided programs to the employer during this time period. When it discovered the conflict, the employer terminated the plaintiff for violating its conflict of interest policy.


Following his termination, the plaintiff contacted the employer after he did not receive a COBRA continuation notice. A senior benefit specialist at the employer erroneously told the plaintiff that he was not eligible for COBRA because he had been terminated for gross misconduct. After the plaintiff contacted the employer's health plan administrator and the Department of Labor, the employer sent him a COBRA election package and extended his election period.


The plaintiff sued the employer, claiming that he never received the COBRA election package, and the employer responded that its actions constituted compliance with COBRA even if its COBRA election package was never received by the plaintiff. The employer had contracted with a third party administrator ("TPA") to provide COBRA notices, and it provided all of its benefit data files, including termination of employment information, to the TPA.


Eleventh Circuit. At trial, the employer presented evidence to confirm that once the TPA received information from the employer, it was uploaded into its computer system and a COBRA election notice is automatically generated. Additional evidence showed that once the COBRA notice was generated, an employee of the TPA would mail the notice via first-class mail to the terminated employee's last known address.   In particular, the TPA was able to provide an internal report confirming that other recipients of COBRA notices that were sent out that day successfully elected coverage.  


In response, the court noted that, under COBRA regulations, sending a notice via first-class mail is sufficient for a plan administrator to meet the requirement to "use measures reasonably calculated to ensure actual receipt of the material by plan participants." As a result, based on the TPA's report confirming successful election of coverage by other employees who received notices mailed that same day, the court concluded that the employer had met its obligations under COBRA, regardless of whether this particular individual had actually received his COBRA notice.



DeBene v. Bay Care Health System, Inc. is available at: https://www.gpo.gov/fdsys/pkg/USCOURTS-ca11-16-12679/pdf/USCOURTS-ca11-16-12679-0.pdf






This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


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.