Health Insurance for the Children

Health Insurance for the Children
By Carol W. Most

Published in New York Family Law Monthly, Law Journal Newsletters
Volume 7, Number 4
January 2006

Health insurance has become an increasingly important component of child support over the past several years. Changes in legislation highlight society’s increased awareness that health care coverage for children is of paramount importance to their welfare, and that a child’s access to proper health care services should not be impeded by his or her parents’ divorce.

For example, Both the DRL §236 (B)(4) and FCA § 424 (A) have been amended to provide for mandatory financial disclosure regarding group health insurance plans. In the 1990s, the Family Court Act § 416 (hereinafter F.C.A. §416) was amended several times with regard to medical benefits. F.C.A. § 416(c) requires the court to identify in its child support orders the availability of any health insurance to the parties for the benefit of the children for whom support is sought, and to identify in the child support order all information required for a qualified medical support order. F.C.A. § 416 (d) requires that the court order the enrollment of eligible dependents in an available plan where health insurance is available through employment for legally responsible relatives. See also Social Services Law § 111. The court must further direct in the child support order that the legally responsible relative assign all reimbursements to the health care providers or to the party actually paying the expense. Health insurance benefits were expanded in the statute to include any medical, dental, optical, prescription drug benefits and health care services or benefits provided for the dependent through employment, organization or other available plan.

Who Pays?

Effective Oct. 2, 2002, F.C.A. § 416 (f) as well as DRL § 240 I (c) and (d) were amended to specifically address the issue of the payment of health insurance. Read together, the statutes create a mandatory proration between the parents of the cost of health insurance. This 2002 amendment highlighted health insurance as an included element of support.

FCA§ 416(f) provides: “[T]he cost of providing health benefits pursuant to subdivision (e) of this section shall be prorated between the parties in the same proportion as each parent’s income is to the combined parental income. If the custodial parent is ordered to provide such benefits, the non-custodial parent’s pro rata share of such costs shall be added to the basic support obligation. If the non-custodial parent is ordered to provide such benefits, the custodial parent’s pro-rata share of such costs shall be deducted from the basic support obligation. . . .”

DRL § 240 I(c) provides: “[T]he court shall consider the availability of health insurance benefits to all parties to the order and direct in the order of support that either or both parties obtain such insurance and allocate the costs therefore consistent with obtaining such insurance for the child or children at reasonable cost to the parties. In making such determination, the court shall determine the extent and type of health insurance benefits available, if any, to each party.”

Recent court decisions adhere to the mandatory language in the statute, apportioning between the parents the cost of health insurance in accordance with the formulas set out in the law. In Rzepecki v. Rzepecki, 6 A.D.3rd 1134 (4th Dept. 2004), the Appellate Division determined that it was error to require the non-custodial parent to pay more than his pro-rata share of the cost of the health insurance benefits for the children.

Some deviation is allowed, however, where special circumstances are shown. In Burton v. Burton, 14 A.D.3d 915, 788 N.Y.S.2d 483 ( 3rd Dept. 2005), the Appellate Division determined that the court was required to pro-rate health care costs “unless, in it’s discretion and applying factors found in Family Court Act §413 (1)(f), it finds the results to be unjust.” The father in Burton earned $ 47,991 per year. The mother's income - consisting of Social Security income and Social Security disability - was $7,000. The parties reached an agreement as to child support but could not agree on the amount, if any, each parent would pay for the children's medical expenses not covered by insurance, the mother asserting that it would be "inappropriate" to require a custodial parent to pay any portion of such expenses where her total income after receipt of child support was below the self-support reserve (see Family Ct. Act § 413 (1)(b)(6)). The Support Magistrate, rejecting the mother's position, issued an order directing the father to pay 93% of the children's uninsured medical, dental and optical expenses leaving the mother responsible for the remaining 7%. Family Court denied the mother's subsequent objection to the Support Magistrate's order. The mother appealed, contending that because her income placed her below the federal poverty level, Family Court should not have ordered her to share in any part of the children's future uninsured health care costs. The Third Department noted that while the Child Support Standards Act (CSSA) generally requires the courts to prorate each parent's share of future reasonable health care expenses of the child not covered by insurance in the same proportion as each parent's income is to the combined parental income, the proportions may be altered where the court, in its discretion and applying the factors found in Family Ct. Act § 413 (1)(f), finds the result to be unjust (see Family Ct. Act § 413 (1)(c)(5); Getner v. Getner, 289 AD2d 886 (2001)). Applying this rationale the Third Department could find no abuse of discretion in the lower court’s order requiring the mother to pay 7% of the children’s uninsured medical costs.

The Role of the Support Collection Unit

The Support Collection Unit must be notified of any changes in health insurance benefits, including any termination of benefits, change in the health insurance benefit carrier or premium, or extent and availability of existing or new benefits. Further, pursuant to CPLR 524, the role of the Support Collection Unit has been expanded to include preparations of medical executions. The Support Collection Unit has also been empowered under FCA § 240 (c) to review and make cost of living adjustments to child support orders, and to make a determination regarding health insurance benefits in the event that the order under review does not provide for such benefits.

The method for keeping the Support Collection Unit “in the loop” is spelled out in the Family Court Form 4-12b, which was amended to include language emphasizing the requirements of mandatory disclosure and notification to the Support Collection Unit of any and all pertinent information regarding the parents or legally-responsible relatives. The form must be completed by such legally-responsible relatives and should provide specific identification of the health insurance plan and the person or entity by whom it is maintained, specific identification of the extent and type of benefits provided and the amount of the premium or contribution. The form must also include information regarding the New York State “Child Health Plus” program or the New York State Medical Assistance Program, in the event that health insurance coverage is not available for a legally-responsible relative. Provisions of the form order legally-responsible relatives to continue to maintain health insurance coverage for eligible dependents, or to immediately enroll eligible dependents in a health insurance plan with coverage provided in accordance with a Medical Execution issued by the Support Collection Unit, pursuant to CPLR 5241, a Medical Execution issued by the court, or a Qualified Medical Child Support Order. Information must be provided within the form concerning the assignment of insurance reimbursement payments for health care expenses incurred for eligible dependents. Furthermore, the form specifies that it is the responsibility of the legally-responsible relative to enroll eligible children as soon as possible when previously unavailable health insurance benefits do become available. Specific information must also be provided with regard to any and all additional insurance held by the legally-responsible relative, including, life insurance and accident insurance, and the assignment of beneficiaries for the benefit of the eligible children.

Conclusion

Certainly, few aspects of parental responsibility are more important than the promotion and maintenance of the children’s health. The statutory changes over the last decade provide a welcome emphasis on the importance of health insurance as an included element of support. An understanding of the requirements of these new and amended statutes will not only protect parents and other legally responsible relatives from the consequences of failure to comply, but will also ensure that children of divorce receive the best available health care coverage their parents can provide.

Carol W. Most, a member of our Board of Editors, is a practitioner in White Plains.

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