QMCSO's, Tasmanian Tigers, Umbrellas, and Other Stuff

MATRIMONIAL LITIGATION

ISSUES OF INTEREST

Submitted by Ronald A. Phillips, Esq.

Member Family Law Committee

Fellow, American Academy of Matrimonial Lawyers

QMCSO's, Tasmanian Tigers, Umbrellas, and Other Stuff

While there has been a requirement to prepare Medical Child Support Orders for some time, one sees a properly drafted one about as often as one sees a Tasmanian Tiger, an animal that became extinct in captivity in 1936 and is now only seen in books. These orders should be as common as umbrellas during a rainstorm in that they are mandatory when medical insurance coverage for a children is directed. These orders are automatically made in the Family Court thanks to the Support Collection Unit. In the Supreme Court, you, as the attorney, are required to draft the order.

The requirements for a "medical child support order" are set forth in DRL § 236 and DRL § 240 as well as in FCA § 416 and FCA § 424-a (see also FCA § 545). The reason that a discussion of "medical child support orders" is necessary is that they must be separate from orders directing the payment of child support. Specifically both DRL § 240 and FCA § 416 state: "The court's issuance of a qualified medical child support order shall be made separately from the order of support". Therefore, even though a judgment of divorce or support order contains the same identical information, two (2) orders must be submitted. Just like a Domestic Relations Order dividing a pension, the only thing that goes into a "Medical Child Support Order" is the information mandated by federal and state law for such orders. When child support is ordered and medical insurance is available, you will be required to submit your Findings of Fact and Conclusions of Law, Judgment of Divorce, and your Medical Child Support Order.

The Medical Child Support Order must contain the following information:

1.Clearly state that it creates or recognizes the existence of the right of the named dependent to be enrolled and to receive benefits for which the legally responsible relative is eligible under the available group health plans.

2.Social security number of the legally responsible relative (A/K/A the "Plan Participant"), the "Alternate Recipient(s)" (A/K/A the child or children) and of each dependent to be covered by the order. [This language is confusing in that it appears to conflict with the definition of “Alternate Recipient(s)” contained 29 USCS 1169. However, the “beneficiaries” and the “Alternate Recipient” are the same parties pursuant to 29 USCS 1169 (a)(7). The children are also participants pursuant to 29 USCS 1169 (a)(7)(B)].

3.Provide a clear description of the type of coverage to be provided by the group health plan to each dependent or the manner in which the type of coverage is to be determined. This would include the specific option if there were several options with respect to medical insurance.

4.Put in the "magic words" required by federal law; The group health plan shall not be required to provide any type or form of benefit or potion not otherwise provided under the group health plan except to the extent necessary to meet the requirements of a law relating to medical child support as described in 42 USCS 1396 g.

5.The name and the last known mailing address (if any) of "the participant" and the name and mailing address of each "alternate recipient" (the children) covered by the order. However, you need not require that the children receive the notice in that the notice requirement can be assigned to the custodial parent pursuant to 29 USCS 1169 (a)(5)(B)(iii). The order should designate the custodial parent as the person to whom such notices should be directed.

6.The period to which such order applies, and the name of each plan to which such order applies.

What happens when the order is finally received by the "Plan Administrator"? Just like a Domestic Relations Order transferring pension rights, the Medical Child Support Order must be reviewed and "Qualified". A Domestic Relations Order becomes a Qualified Domestic Relations Order or QDRO upon being approved, and a Medical Child Support Order becomes a Qualified Medical Child Support Order or QMCSO upon being approved.

The "Plan Administrator" must first notify the "Plan Participant" and the "Alternate Recipients" (or their designated agent for receipt of notices) of the receipt of the order. The notification must be in writing. Next the PA check's the proposed order for the six (6) items listed above. Lastly, assuming the order meets all the necessary requirements, the PA notifies the "plan participant" and the "alternate recipients" of the fact that the order qualifies or is deficient in some area.

A copy of a proposed order is attached. It includes suggested decretal paragraphs directing that the proper notices be sent out to the "Plan Participant" and the "Alternate Recipients" (actually their designated agent). It requires that the custodial parent be provided with the necessary identification cards, claim forms, and that the reimbursement checks be payable directly to the custodial parent. There are also "notices" required to be made a part of the order, and I suggest that additional notices be included pertaining to "priority" as wells as maximum permissible deductions.

Many of the recent amendments to matrimonial and family law including QMCSO's are driven by federal mandates; therefore, the matrimonial practitioner should have the federal code available so that the changes to state law become more easily understood. If you don't have it readily available, Steve Abel, Esq. puts out a book for family law practitioners, "Federal Family Law" ($49.75). It would be a good investment. Today, the federal government directs and the states comply; one project that is currently in vogue is to change matrimonial and family law. It is important to stay up-to-date on federal law as it effects matrimonial law.

The Other Stuff

As part of Chapter 398 of the session laws of 1997, DRL § 236 was also amended in yet another area and now provides that additional information must be provided with your Net Worth Statements. DRL § 236 part B (a) now contains the following additional language:

"All such sworn statements of net worth shall be accompanied by a current and representative paycheck stub and the most recently filed state and federal income tax returns including a copy of the W-2(s) wage and tax statement(s) submitted with the returns. In addition, both parties shall provide information relating to any and all group health plans available to them for provision of care or other medical benefits by insurance or otherwise for the benefit of the child or children form whom support is sought, including all such information as may be required to be included in a qualified medical child support order as defined in section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169) including, but not limited to:

(i)the name and last known mailing address of each party and of each dependent to be covered by the order;

(ii)the identification and a description of each group health plan available for the benefit or coverage of the disclosing party and the child or children for whom support is sought;

(iii)a detailed description of the type of coverage available from each dependent;

(iv)the identification of the plan administrator for each such group health plan and the address of such administrator;

(v)the identification numbers for each such group health plan;

(vi)such other information as may be required by the court to ensure that an order for medical support is qualified in the manner required…."

(New material in parenthesis)

The last item, (vi), is interrelated with the requirements for child support payments and the information that should be included in your Judgment of Divorce (see Rockland County Bar Association News Brief, Matrimonial Litigation…Issues of Interest, April 1998, page 7). This additional information that should be included is:

(i)The mailing address of both parties if different from their actual address (many people going through a divorce get a post office box or receive mail at a friend's or relative's home to insure that they actually get their mail).

(ii)Home telephone number of each of the parties.

(iii)Driver's License Number.

(iv)The Net Worth Statement currently has the employer's name, but you must also add:

1.Employer's full address.

2.Employer's telephone number (not the number where the party to the litigation can be reached, but the main number so that personnel may be contacted).

The additional information will require either an amendment to the existing Net Worth Statement, or a "rider" containing the information. A "rider" that may be used is enclosed. Again, it would appear that this information is not presently being included because the form has yet to be modified.

Interstate Family Support Act Forms

The amendments and additions made to matrimonial law and family law in 1997 were so numerous that there was a delay in getting all the forms modified (or created) to comply with the changes. Some of the gaps have been filled. You can now download the forms for the Interstate Family Support Act (Article 5-B of the Family Court Act) from the Office of Court Administration web site [http://ucs.ljx.com]. There are 13 new forms. They are listed below.

If you need a specific form and can't get it because you don't have access to the web, you can call the Family Court and they will supply a copy of it. A full printout of all 13 of the forms with the instructions is a lot of paper (the stack of papers is over 3/8 inches thick) so it is best to get the new forms on disk.

The Office of court administration has amended and created many new Family Court forms in many different areas; if you want them all, it will fill three 1.44 MB floppy disks.

they are available at the web site. Unfortunately they are not available in three (3) zip files (compressed files that take up less space on a disk) and you will be required to download all the forms separately. Hopefully, the Office of Court Administration will start putting all new forms in zip files taking up less than 1.44 MB per file so that they can be downloaded more quickly and easily.