AGO 1993-005.

CourtConnecticut
Connecticut Attorney General Opinions 1993. AGO 1993-005. 1993Opinion No. 1993-005Robert R. Googins, CommissionerDepartment of Insurance165 Capitol AvenueHartford, CT 06106 Dear Commissioner Googins: You have requested our advice on several questions related to 1992 Conn. Public Act 92-158, An Act Concerning Extending Continuation Benefits to the Unemployed (hereinafter "Public Act 92-158"). Public Act 92-158 amended Conn. Gen. Stat. e § 38a-538, which requires employers to offer employees whose employment has terminated for reasons other than death the option to purchase continued health insurance coverage under the employer's group health plan at the same group rate. Public Act 92-158 extended the time period for such continuation coverage from 78 weeks to 104 weeks. Your questions concern the applicability of Public Act 92-158 in light of the continuation coverage requirements contained in federal law. The Employees Retirement Income Security Act of 1974 ("ERISA") 29 U.S.C. e § 1001, et seq. was amended in 1985 by Public Law 99-272 (the "COBRA" amendments) to require all employers of 20 or more employees who maintain a group health plan to offer employees whose employment terminates the option to purchase continued coverage under the group plan. Currently, under the COBRA amendments, federal law requires that employees whose employment has terminated for reasons other than death or gross misconduct be given the option to extend coverage for eighteen months. Your questions are addressed in the order presented in your letter. 1. Does Public Act 92-158 apply to employers with less than 20 employees who maintain group health insurance plans or does ERISA operate to preempt application of Public Act 92-158 to such employers? ERISA regulates employee benefit plans established or maintained by employers or employee organizations, with certain exceptions.1 Included in the definition of employee benefit plans are plans in which employers provide health benefits to employees.2 ERISA contains a broad preemption provision, which states that the statute shall "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. e § 1144(a). (Emphasis added). However, the preemption provision is qualified by the "insurance savings clause" which states that nothing in ERISA "shall be construed to exempt or relieve any person from any law of any state which regulates insurance, banking, or securities." 29 U.S.C. e § 1144(b)(2)(A). To answer your first question, we must determine whether Conn. Gen. Stat. e § 38a-538 as amended by Public Act 92-158 is a law that "relates to" an employee benefit plan, and if so, whether it escapes preemption as a law regulating insurance. In Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), the United States Supreme Court discussed the breadth of ERISA's preemption provision. The court stated that "[a] law relates to an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Id. at 96-97. The legislative history of the preemption provision indicates that Congress intended to reserve to the federal government the...

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