The U.S. Department of Health and Human Services has not issued regulations concerning COBRA continuation coverage for the group health plans of state and local governments. If regulations are issued on continuation coverage requirements for state and local governments, then the H&HS regulations must conform to the similar regulations issued by the Treasury and the Department of Labor. See the final rules notice published by the Department of Labor, 69 FR 30084 (May 26, 2004), footnote 4, citing House Conference Report No. 99-453 at 563 (1985). The Department of Labor COBRA continuation regulations begin at
29 CFR §2590.606-
1 and the related Treasury regulations begin at
26 CFR § 54.4980B-1.
Meanwhile, the COBRA continuation provisions of the Public Health Services Act are codified beginning at 42 U.S.C. §300bb-1. Under 42 USC § 300bb-3(1), the death of a covered employee is a “qualifying event" giving rise to continuation rights for the surviving spouse and dependent children insured under the employee's coverage if the coverage would terminate because of the death. The term “covered employee," as defined by 42 USC § 300bb-8 (2), includes retired employees. Within 30 days, the employer is required to notify the plan administrator of the employee's death and within 14 days after notification, the plan administrator must send notice of COBRA continuation rights to the affected surviving spouses or dependent children who were covered under the plan. See 42 U.S.C.A. § 300bb-6(2) and (4)(A).
During the “election period" the surviving spouse or dependent child who would otherwise lose coverage under the plan because of the employee's death, is entitled to elect continuation coverage. For this purpose, the “election period" is defined by 42 USC §300bb-5 to be a period of 60 days, beginning on the later of (a) the date of the notice provided to the surviving spouse (or dependent child), or (b) the date coverage would end as a result of the employee's death.
Comparison with rules in adjacent states
A check on WestLaw for rules pertaining to health insurance and surviving dependents found no similar rules in Illinois, Iowa, Michigan or Minnesota except the following:
Illinois. Illinois Admin. Code title 80 § 2160.130 is part of the administrative code pertaining to employee benefits for public officials and employees. The rule relates specifically to the local government health plan. This rule defines the term “survivor" to mean a person who is a surviving dependent of a person who satisfies the definition of “employee" or “annuitant." A survivor is included within the definition of the term “member." The term survivor appears again in Ill. Admin. Code title 80 § 2160.310, concerning enrollment in the local government health plan. Section 2160.310 a) provides that local units of government may offer coverage under the plan to survivors, as well as employees, annuitants and dependents.
Iowa. Iowa Admin. Code r. 11-60.1(8A) 60.1(3) d. and e. include provisions of a 1992 early retirement incentive program that applied to persons 59 and over at termination, with 20 years of service in the Iowa Public Employees' Retirement System or the Public Safety Peace Officers' Retirement, Accident, and Disability System, who were also participating in one of the state's group health or dental insurance plans at the time of termination. Both provisions concern the state's payment of a share of premiums and the effect of a permitted switching between family and single coverage, and back again. Upon the death of a program participant before age 65, state's share of health or dental premium, or both, continues to be paid for the benefit of the surviving insured dependents until the end of the month before the deceased participant's 65th birthday. The dependents could then purchase a conversion policy. Changes in the contract from family to single, and back, are permitted. However, the state's share of premiums will be reduced to the single rate upon a change from family to single coverage and will thereafter be capped at the single rate even if the contract is subsequently changed to family coverage.
Michigan. No similar rule.
Minnesota. Minn. R. 2740.0100 subp. 25 is part of a rule of the Minnesota Department of Commerce related to the Minnesota Comprehensive Health Insurance Act of 1976. It defines the term “individual insured" to include the surviving spouse or surviving dependent of a covered employee. The rule references Minnesota Statutes, section 62A.17, subdivision 6, a provision related to continuation coverage. The term “individual insured" does not appear elsewhere in the rule on comprehensive health insurance.
Summary of factual data and analytical methodologies
In the most recent six month period, from January through June 2008, the Department processed 2,445 annuitant deaths, or an average of 360 per month. In 312 of those 2,445 cases, (or 52 cases per month on average) the annuitant was survived by individuals who had been covered under the annuitant's ch.
40 group health insurance. These figures are consistent with the same period in 2007. About 95% of surviving insured dependents make an effort to keep the health insurance coverage in effect after the annuitant's death.
The proposed rule will directly affect the surviving insured dependents of insured employees and annuitants with family health insurance coverage, when the date of the employee's or annuitant's death occurs after the effective date of the rule.
The rule-making will also affect the administration of coverage under the group health insurance programs by Department of Employee Trust Funds staff, the third-party administrative contractor and the private Health Maintenance Organizations and similar insurers who agree to participate in the group health insurance program.
Analysis and supporting documents used to determine effect on small business
The Group Insurance Board's authority with respect to group health insurance for employees of the state and participating local governments is stated in ss.
40.51,
40.52 and
40.53, Stats. The group health insurance provided under this authority does not cover employees in the private sector.
Anticipated Costs Incurred by Private Sector
None.
Effect on Small Business
No effect.
Fiscal Estimate
This rule-making has no fiscal impact.
Submission of Written Comments
Written comments on the proposed rule may be submitted to Robert Weber, Chief Counsel, Department of Employee Trust Funds, 801 W. Badger Road, P.O. Box 7931, Madison, WI 53707-7931. Written comments must be received at the Department of Employee Trust Funds no later than 4:30 PM on Wednesday, August 27, 2008.
Agency Contact Person
Please direct any questions about the proposed rule to Bonnie Cyganek, Director, Benefit Services Bureau, Division of Retirement Services, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Telephone: (608) 267-9037. E-mail address:
bonnie.cyganek@etf.state.wi.us.
Copy of Proposed Rule
Copies of the proposed rule are available without cost from the Office of the Secretary, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707-7931, telephone (608) 266-1071.
Notice of Proposed Rule-Making
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to ss.
5.05 (1) (f),
5.93, and
227.11 (2) (a), Stats., and interpreting ss.
5.84,
5.86,
5.87,
5.90,
5.905,
5.91,
7.23,
7.51, and
9.01 Stats., and according to the procedure set forth in s.
227.16 (2) (e), Stats., the State of Wisconsin Government Accountability Board will adopt the following rule as proposed in this notice, repealing and recreating Chapter
GAB 5, relating to ballot security.
The proposed rule will be adopted without public hearing unless within 30 days after publication of this notice, on August 15, 2008, the Board is petitioned for a public hearing by 25 persons who will be affected by the rule; by a municipality which will be affected by the rule; or by an association which is representative of a farm, labor, business, or professional group which will be affected by the rule.
Analysis Prepared by Government Accountability Board
Statutes interpreted
Statutory authority
Explanation of agency authority
The Government Accountability Board's rule on ballot security, under ss.7.23 and 7.51, Stats., has become outdated because of advances in technology and because of heightened administrative and public concerns about ballot security in light of recent security and chain-of-custody problems in elections both in Wisconsin and in other states. To address those concerns and to update ballot security in Wisconsin, the Board proposes to repeal and re-create chapter GAB 5, the ballot security rule.
Related statute or rule
Sections
5.66,
5.85,
5.86,
5.87,
5.90,
7.10,
7.15,
7.24,
7.37,
7.53,
9.01, and
12.13, Stats.
Plain language analysis
The proposed rule provides the requirements for maintaining the security of ballots that are cast at an election and maintaining the integrity of the tabulation of those ballots in the canvass of an election.
Comparison with federal regulations
Federal law does not apply to the preparation, printing, or security of ballots. Federal law does require that materials, including ballots, relating to any election in which a federal office is on the ballot, must be preserved for not fewer than 22 months.
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota all statutorily require that after ballots have been counted, they shall be secured in a sealed envelope or other container in such a manner that no ballot may be removed without breaking the seal on that container. The ballots and other election documents in those sealed containers are returned to the custody of the local election official who will hold them until they may be destroyed under state and federal law.
Generally, unlike Wisconsin's rule, the law in all four states provides for the retention of unused ballots until destruction of all ballots is authorized by state and federal law.
Summary of factual data and analytical methodologies
Adoption of the rule was predicated on federal and state mandate rather than on any factual data or analytical methodology.
Analysis and supporting documents used to determine effect on small business
The rule will have no effect on small business, nor any economic impact.
Effect on Small Business
The creation of this rule does not affect business.
Fiscal Estimate
The creation of this rule has no fiscal effect.
Agency Contact Person
George A. Dunst, Staff Counsel, Government Accountability Board, 17 West Main Street, P.O. Box 2973, Madison, Wisconsin 53701-2973; Phone 266-0136;
george.dunst@wisconsin.gov
Submission of Written Comments
Written comments may be submitted to the Government Accountability Board, 17 West Main Street, P.O. Box 2973, Madison, WI 53701-2973; (elections.state.wi.us)
Text of Rule
The Government Accountability Board proposes an order to repeal and recreate Chapter
GAB 5, relating to ballot security, and interpreting sections
5.84,
5.86,
5.87,
5.90,
5.905,
5.91,
7.23,
7.51, and
9.01, Stats.
SECTION 1. Chapter GAB 5 is repealed and re-created to read:
Ballot and Electronic Voting System Security
GAB 5.01 Ballot security. (1) In this section:
(a)
“Board" means the government accountability board.
(b)
“Certificate of performance compliance" means the document provided by voting equipment vendors certifying that the equipment complies with the performance requirements of s.
5.91, Stats.
(c)
“Chain-of-custody" means the recorded movement and location of election ballots from the time of delivery of the ballots to the municipal clerk or board of election commissioners until the destruction of the ballots is authorized under s.
7.23, Stats.
(d)
“Custodian" means the election official who is authorized by chs.
5 to
12 to take possession and control of the ballots from the time of delivery of the ballots to the clerk or board of election commissioners until destruction of the ballots is authorized under s.
7.23, Stats.
(e)
“Electronic voting system" has the meaning given in s.
5.02 (4m), Stats.
(f)
“Firmware" means the computer software stored in read-only memory or programmable read-only memory.
(g)
“Modem" means a device for transmitting data between two computers over telephone or other communication lines.
(h)
“Results report" means the print-out of voting data by a piece of electronic voting equipment.
(i) “Software" has the meaning given in s.
5.905 (1), Stats.
(2) Within the requirements of s.
7.51 (3), Stats., the terms “secure" and “seal" shall be interpreted together to mean that the voted ballot container must be closed in such a manner that no ballot may be removed, nor any ballot added, without visible evidence of interference or damage to the ballot container.
(3) Within the requirements of s.
7.51 (3) (a), Stats., a ballot container shall be considered “sealed" or “locked," only if no voted ballot may be removed from or deposited into the container, and no other form of access to the ballots inside may be gained without leaving visible evidence of that entry or access into the container.
Ballot bags shall be sealed with a tamper-evident, serialized numbered seal. The serial number shall be recorded on the signed ballot container certification (EB-101) attached to the bag. Serial numbers of the seals also shall be recorded on the Inspectors' Statement (EB-104). Ballot boxes or containers shall have all potential openings secured in such a manner that no ballot may be removed, nor any ballot added, without visible evidence of interference or damage to that ballot container. Ballot boxes or containers shall have attached a signed ballot container certification (EB-101).
(4) A sealed ballot container shall not be considered “secured" unless it is stored in a manner in which access to the container is limited only to the clerk of the election district, board of election commissioners, or to persons authorized by the clerk or the board of election commissioners, and access to which is not available to any other person.
(5) Whenever the custodian is required to open the ballot container and unseal the ballots as part of a central count proceeding under s.
5.86, Stats., board of canvass proceeding under Ch.
7, Stats., audit of electronic voting equipment after an election under s.
7.08 (6), Stats., recount or an appeal of a recount under s.
9.01, Stats., or as part of a public records request under s.
19.35, Stats., before opening the container the custodian shall record in the minutes of the proceeding whether the container is sealed and shall record the serialized number of the seal. The custodian shall make a record of the entry and of the ballot review. Upon completion of the review, the custodian shall re-secure them in the manner provided in s.
7.51, Stats., unless destruction is authorized under s.
7.23, Stats.
(6) Security of the ballots and the ballot container shall be maintained as provided under s.
7.51, Stats., until destruction of the ballots is conducted under s.
7.23, Stats. Destruction of the ballots authorized under s.
7.23, Stats., requires shredding, incineration, or some other form of obliteration of the ballots.
(7) At the time of a recount, the serial numbers on the seals of the ballot container shall be compared with the serial numbers written on the signed ballot container certification (EB-101). All containers shall be compared in a recount. The ward numbers and the results of the serial number verification shall be recorded in the minutes of the recount.
(8) The municipal clerk or board of election commissioners shall securely maintain all ballots from the time of receipt from the printer or county clerk through delivery to the polling place.
GAB 5.02 General electronic voting system security procedures. (1) These procedures apply to all electronic tabulating voting equipment memory devices, including prom packs, memory cards, or any other removable memory devices that can be programmed or functioned to store and transfer ballot images or tabulation data.
(2) Throughout the life of the electronic voting system, the municipal or county clerk shall maintain control of all memory devices in a secure manner at all times. With the agreement of the municipal clerk or board of election commissioners, the county clerk or county board of election commissioners may store memory devices in a secure location. The municipal clerk or board of election commissioners shall secure all keys to the electronic voting equipment.
(3) For each election, there shall be a separate, written chain-of-custody record for each programmed memory device used with an electronic voting system. Each transfer shall be logged in the written chain-of-custody record.
(4) Each programmed memory device shall have or be assigned a unique and permanent serial number. If the memory device does not have a permanent serial number affixed by the manufacturer, a clerk shall, if possible, affix to the device a serial number or unique identifier.
(5) The municipality shall use controlled, serialized seals that are tamper-evident and resistant to accidental breakage along with a written record of all seals and associated serial numbers.
(6) For each election, the municipal clerk shall record on the Inspectors' Statement (EB-104), which memory devices and which serialized tamper-evident seals are assigned to particular voting stations or units.
