What If a COBRA Qualified Beneficiary is Incapacitated?

Typically, a participant must elect COBRA coverage 60 days after a qualifying event or notification of a qualifying event. However, what should a plan do if a participant is incapacitated during some or all of that 60-day period? The Act is silent on how a plan must treat participants who are incapacitated during a COBRA election or premium payment period, but case law has filled in the gaps. Courts have consistently held that if a qualified beneficiary is incapacitated, his or her COBRA rights “toll.” That means the rights are in essence frozen until the qualified beneficiary regains capacity or a legal representative is appointed. If a situation arises where a qualified beneficiary is incapacitated, the plan should contact legal counsel to determine how the tolling period applies in each particular situation.