Chapter
637
AN ACT
HB 2095
Relating to health care coverage for child under child support order; creating new provisions; amending ORS 25.275, 25.375, 107.106 and 659A.885; repealing ORS 25.255; and declaring an emergency.
Be It Enacted by the People of the State of
SECTION 1. Sections 2 to 13 of this 2003 Act are added to and made a part of ORS chapter 25.
SECTION
2. Definitions. As used
in sections 2 to 13 of this 2003 Act:
(1)
“Accessible” means that, unless otherwise provided in a support order:
(a)
A health benefit plan does not have service area limitations or the health
benefit plan provides an option not subject to service area limitations;
(b)
A health benefit plan has service area limitations and the child lives within
30 miles or 30 minutes of a primary care provider under the plan; or
(c)
A health benefit plan is accessible as defined in rules of the Department of
Human Services.
(2)
“Enforcing agency” means the administrator.
(3)
“Enroll” means to be eligible for and covered by a health benefit plan.
(4)
“Health benefit plan” means any policy or contract of insurance, indemnity,
subscription or membership issued by an insurer or any self-insured employee
benefit plan for the purpose of covering medical expenses. Medical expenses may
include but are not limited to hospital, surgical, major medical, dental,
optical, prescription drugs, office visits or any other comparable health care
expenses or any combination of these expenses.
(5)(a)
“Health care coverage” means providing a health benefit plan under section 3 of
this 2003 Act to meet the medical needs of a child and paying the cost of any
premium required by the health benefit plan.
(b)
“Health care coverage” does not include and is a separate obligation from any
monetary amount of child support or spousal support ordered to be paid.
(6)
“Medical support notice” means a notice as prescribed under 42 U.S.C.
666(a)(19) or a substantially similar notice that is issued and forwarded by
the enforcing agency to enforce health care coverage provisions of a support
order.
(7)
“Plan administrator” means:
(a)
The employer, union or other provider that offers a health benefit plan; or
(b)
The person to whom, under a written agreement of the parties, the duty of plan
administrator is delegated by the employer, union or other provider that offers
a health benefit plan.
(8)
“Primary care provider” means a physician who provides primary care and is a
family or general practitioner, pediatrician, internist, obstetrician, or
gynecologist.
(9) “Satisfactory health care coverage” means coverage provided under a health benefit plan, other than Medicaid or the Oregon Health Plan, that at a minimum includes emergency care, inpatient and outpatient hospital care, physician services, whether provided within or outside a hospital setting, and laboratory and X-ray services.
SECTION
3. Health care coverage.
(1) In all child support orders entered under ORS chapters 107, 108, 109 and
110 and ORS 416.400 to 416.470, 419B.400 and 419C.590, and in any modifications
of those orders, the court or the enforcing agency shall order the obligor to
provide satisfactory health care coverage for the child, unless the court or
the enforcing agency finds that:
(a)
The obligee or the assignee of child support rights has elected to provide
health care coverage for the child; or
(b)
The obligor cannot provide satisfactory health care coverage that is reasonable
in cost and accessible to the child.
(2)
If the court or the enforcing agency finds that the obligor cannot provide
health care coverage because health care coverage that is reasonable in cost
and accessible to the child is not available at the time the child support
order is entered, the court or the enforcing agency shall include in the order
a provision requiring the obligor to provide health care coverage when such
coverage becomes available to the obligor.
(3)
Health care coverage is reasonable in cost if:
(a)
The coverage is available to the obligor through employment related or other
group health insurance;
(b)
The obligor’s share, if any, of premiums for the coverage does not, under the
circumstances of the case, make the application of the formula established
under ORS 25.275 unjust or inappropriate; and
(c)
The coverage satisfies other criteria that the Department of Human Services may
adopt by rule.
(4) The Department of Justice shall adopt rules under ORS 25.275 for determining how the costs of providing health care coverage affect the support obligation.
SECTION
4. Enforcing health care
coverage. (1) When a child support order requires an obligor to provide
health care coverage for a child under a health benefit plan:
(a)
The court or the enforcing agency may issue a qualified medical child support
order as provided in section 609 of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1169) directing the obligor’s employer or plan administrator
to enroll the obligor’s child in a health benefit plan and directing the
obligor’s employer to withhold any required premium from the obligor’s
compensation.
(b)
If support enforcement services are being provided under ORS 25.080, the
enforcing agency shall, when appropriate:
(A)
Issue a medical support notice in accordance with rules adopted by the
Department of Human Services.
(B)
Issue a medical support notice to the obligor’s employer within two business
days of receiving information under ORS 25.790 that the employer has hired or
rehired the obligor.
(C)
Provide the obligee with information regarding the health care coverage
obtained for the child and with any notice that coverage may terminate because
withholding has stopped under section 7 or 12 of this 2003 Act.
(2)
If an order to provide health care coverage is in effect or is being sought:
(a)
The obligor’s employer or plan administrator shall release to the obligee or
the enforcing agency, upon request, the name and address of the insurer and any
plan administrator; and
(b)
The plan administrator shall release to the obligee or the enforcing agency,
upon request, information about dependent health care coverage under the health
benefit plan.
(3) If a qualified medical child support order or a medical support notice has been served on the obligor’s employer, the order or notice is binding on the employer and the plan administrator to the extent that the child is eligible to be enrolled in the health benefit plan under the applicable terms and conditions of the plan and the standard enrollment guidelines as described in ORS 743.847. Enrollment of the child shall be allowed at any time, notwithstanding any enrollment season restrictions.
SECTION
5. Service of medical support
notice. (1) The enforcing agency shall serve the medical support notice on
the obligor’s employer as a withholder. The notice may be served upon the
withholder or the withholder’s registered agent, corporate officer, bookkeeper,
accountant, person responsible for payroll or local office manager by:
(a)
Personal service;
(b)
Any type of mail that is calculated to give actual notice and is addressed to
one of the persons listed in this subsection; or
(c)
Electronic means if the employer has the ability to receive the medical support
notice in that manner.
(2)
Service of a medical support notice constitutes receipt of a medical child
support order.
(3) The enforcing agency shall, as provided in section 8 of this 2003 Act, notify the obligor and obligee that the medical support notice has been served on the obligor’s employer.
SECTION
6. Medical support notice.
When the enforcing agency serves a medical support notice on an employer:
(1)
The employer shall comply with the provisions in the medical support notice;
(2)
The plan administrator and the employer shall treat the medical support notice
as an application by the enforcing agency for health care coverage for the
named child under the health benefit plan to the extent an application is
required by the plan;
(3)
If the obligor named in the medical support notice is not an employee of the
employer, or if a health benefit plan is not offered or available to the
obligor, the employer shall notify the enforcing agency within 20 business days
after the date of the medical support notice;
(4)
If a health benefit plan is offered or available to the obligor, the employer
shall send the plan administrator’s portion of the notice to each appropriate
plan administrator within 20 business days after the date of the medical
support notice;
(5)
Within 40 business days after the date of the medical support notice, the plan
administrator shall do all of the following as directed by the notice:
(a)
Complete the appropriate portion of the notice and return the portion to the
enforcing agency;
(b)
If the child is or will be enrolled, notify the obligor and obligee and furnish
the obligee with the information necessary to effectuate coverage and submit
claims for benefits;
(c)
If the child has been or will be enrolled, provide the enforcing agency with
the type of health benefit plan under which the child has been or will be
enrolled, including whether dental, optical, office visits and prescription
drugs are covered services;
(d)
If more than one health benefit plan is available to the obligor and the
obligor is not enrolled, forward the health benefit plan descriptions and
documents to the enforcing agency;
(e)
If the obligor is subject to a waiting period that expires more than 90 days
after the date of receipt of the medical support notice by the plan
administrator or if the obligor has not completed a waiting period that is
measured in a manner other than the passage of time, notify the employer, the
enforcing agency, the obligor and the obligee; and
(f)
Upon completion of the enrollment, notify the employer of the enrollment;
(6)
If the plan administrator notifies the employer that the obligor is subject to
a waiting period that expires more than 90 days after the date of receipt of
the medical support notice by the plan administrator or that the obligor is
subject to a waiting period that is measured in a manner other than the passage
of time, the employer shall, when the obligor becomes eligible to enroll in the
plan, notify the plan administrator that the medical support notice requires
that the child named in the notice be enrolled in the plan;
(7)
The plan administrator shall enroll the child and, if necessary to the
enrollment of the child, enroll the obligor in the plan selected in accordance
with this subsection. All of the following apply to the selection of the plan:
(a)
If the obligor is enrolled in a health benefit plan that offers dependent
coverage, that plan shall be selected;
(b)
If the obligor is not enrolled in a health benefit plan or is not enrolled in a
plan that offers dependent coverage, and if only one plan with dependent
coverage is offered, that plan shall be selected; and
(c)
If the obligor is not enrolled in a health benefit plan or is not enrolled in a
plan that offers dependent coverage and if more than one plan with dependent
coverage is offered, the enforcing agency shall:
(A)
Send the health benefit plan descriptions and documents to the obligee; and
(B)
Select a plan in consultation with the obligee and in accordance with rules
adopted by the Department of Human Services;
(8)
If more than one health benefit plan is available to the obligor and the
obligor is not enrolled, within 20 business days after the date the plan
administrator forwarded the health benefit plan descriptions and documents to
the enforcing agency under subsection (5)(d) of this section, the plan
administrator shall:
(a)
Enroll the child, and if necessary the obligor, in the health benefit plan
selected by the enforcing agency; or
(b)
Enroll the child, and if necessary the obligor, in any default option if the
plan administrator has not received a selection from the enforcing agency; and
(9) Upon notification from the plan administrator that the child is enrolled, the employer shall either withhold and forward the premiums as provided in section 7 of this 2003 Act or notify the enforcing agency that the enrollment cannot be completed because of limits established for withholding as provided in section 7 of this 2003 Act.
SECTION
7. Obligation to withhold.
(1) Upon notification from the plan administrator that the child is enrolled in
the health benefit plan, the employer shall withhold from the obligor’s
compensation the obligor’s share, if any, of premiums for the health benefit
plan. The employer shall forward the amount withheld as required by the health
benefit plan.
(2)
The withholding required by a qualified medical child support order or a
medical support notice is a continuing obligation. The qualified medical child
support order or medical support notice and the withholding remain in effect
and are binding upon the employer until further notice from the court or the
enforcing agency.
(3)(a)
An amount withheld by an employer in compliance with a withholding order issued
for monetary support and a qualified medical child support order or medical
support notice may not exceed 50 percent of the obligor’s net disposable
income.
(b)
Notwithstanding paragraph (a) of this subsection, upon the motion of a party
and after a hearing, the court may order the withholding of more than 50
percent of the obligor’s net disposable income. However, the amount withheld
may not exceed the amount allowed under section 303(b) of the federal Consumer
Credit Protection Act (15 U.S.C. 1673(b)).
(4)
If an obligor’s compensation drops to a level at which withholding under this
section exceeds the amount allowed under subsection (3) of this section, the
employer shall stop the withholding and send the court or the enforcing agency,
as the case may be, a written notice within 15 days of stopping the
withholding. The notice shall include the obligor’s name, address and Social
Security number and the date the employer stopped withholding under this
section.
(5)
An employer is not subject to civil liability to an individual or agency for
conduct or actions in compliance with a medical support notice if the employer:
(a)
Is served with a medical support notice under section 5 of this 2003 Act that
is regular on its face; and
(b) Complies with the provisions of the medical support notice if the notice appears to be in conformance with section 609 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1169).
SECTION
8. Contesting medical support
notice. (1) When the enforcing agency issues a medical support notice under
section 4 of this 2003 Act, the enforcing agency shall notify the obligor and
the obligee by regular mail to the last known addresses of the obligor and
obligee:
(a)
That the notice has been sent to the obligor’s employer; and
(b)
Of the obligor’s rights and duties under the notice.
(2)
An obligor may contest a medical support notice within 14 days after the date
the premium is first withheld pursuant to the notice or, if the health benefit
plan is provided at no cost to the obligor, the date the first premium is paid
by the employer.
(3)
The only basis for contesting a medical support notice is a mistake of fact. A
“mistake of fact” means any of the following:
(a)
No order to provide health care coverage under a health benefit plan has been
issued in regard to the obligor’s child;
(b)
The amount to be withheld for premiums is greater than is permissible under
section 7 of this 2003 Act; or
(c)
The alleged obligor is not the obligor from whom health care coverage is
required.
(4)
The obligor may contest the medical support notice by requesting an
administrative review. After receiving a request for review and within 45 days
after the date the premium is first withheld pursuant to the medical support
notice, the enforcing agency shall determine, based on an evaluation of the
facts, whether the withholding for premiums may continue. The enforcing agency
shall inform the obligor and obligee of the determination in writing and
include information regarding the right to appeal the determination.
(5)
Any appeal of the enforcing agency’s determination under subsection (4) of this
section is to the circuit court for a hearing under ORS 183.484.
(6) The initiation of proceedings to contest a medical support notice or an appeal of the enforcing agency’s determination under this section does not stay the withholding of premiums.
SECTION 9. Termination of support order. When support enforcement services are being provided under ORS 25.080, the enforcing agency shall notify the employer when there is no longer in effect a support order requiring health care coverage for which the enforcing agency is responsible. However, termination of the health care coverage is governed by the health benefit plan’s provisions for termination and by applicable federal law.
SECTION
10. Liability. (1) If the
plan administrator or the employer fails to comply with the requirements
described in section 6 or 7 of this 2003 Act, the enforcing agency or obligee
may bring a civil action against the plan administrator or employer for medical
expenses, the obligor’s share of the premiums, attorney fees and costs.
(2)
An employer commits an unlawful employment practice if the employer discharges
an obligor, refuses to hire an obligor or in any other manner discriminates,
retaliates or takes disciplinary action against an obligor because of the entry
of a medical support notice or qualified medical child support order or because
of the obligations imposed upon the plan administrator by the order. An
employee may bring a civil action under ORS 659A.885 or may file a complaint
with the Commissioner of the Bureau of Labor and Industries in the manner
provided by ORS 659A.820.
(3)
An obligor who fails to maintain health care coverage for a child as ordered is
liable, from the date of the order, for any medical expenses resulting from the
failure to maintain coverage.
(4) The remedies described in this section are not exclusive. Nothing in this section precludes action by the court to enforce a judicial or administrative order requiring health care coverage or costs by imposition of remedial or punitive sanctions for contempt or otherwise.
SECTION 11. Priority of order. A medical support notice issued under section 4 of this 2003 Act has priority over any previously filed attachment, execution, garnishment or assignment of income other than a withholding order issued for monetary support, unless otherwise requested by the obligee.
SECTION 12. Notice of termination of obligor’s relationship. When an employer is unable to continue withholding from an obligor’s compensation because the relationship between the employer and the obligor ends, the employer shall send the enforcing agency a written notice within 15 days of the termination of the relationship. The notice must include the obligor’s name, the obligor’s last known address, the obligor’s Social Security number, the date the relationship terminated and, if known, the name and address of a new employer of or other provider of a health benefit plan to the obligor.
SECTION 13. Authorization for reimbursement payments. The signature of the obligee or guardian of a child covered by a health benefit plan is a valid authorization for purposes of processing an insurance reimbursement payment to the provider of the health services as provided in ORS 743.847.
SECTION 14. ORS 25.255 is repealed.
SECTION 15. ORS 25.275, as amended by section 26a, chapter 73, Oregon Laws 2003 (Enrolled House Bill 2340), and section 75, chapter 75, Oregon Laws 2003 (Enrolled House Bill 2526), is amended to read:
25.275. (1) The Division of Child Support of the Department of Justice shall establish by rule a formula for determining child support awards in any judicial or administrative proceeding. In establishing the formula, the division shall take into consideration the following criteria:
(a) All earnings, income and resources of each parent, including real and personal property;
(b) The earnings history and potential of each parent;
(c) The reasonable necessities of each parent;
(d) The ability of each parent to borrow;
(e) The educational, physical and emotional needs of the child for whom the support is sought;
(f) The amount of assistance that would be paid to the child under the full standard of need of the state’s IV-A plan;
(g) Preexisting support orders and current dependents;
(h) Any Social Security or Veterans’ benefits paid to the child, or to a representative payee administering the funds for the child’s use and benefit, as a result of a parent’s disability or retirement; and
(i) Other reasonable criteria that the division may find to be appropriate.
(2) The formula described in subsection (1) of this section must also comply with the following standards:
(a) The child is entitled to benefit from the income of both parents to the same extent that the child would have benefited had the family unit remained intact or if there had been an intact family unit consisting of both parents and the child.
(b) Both parents should share in the costs of supporting the child in the same proportion as each parent’s income bears to the combined income of both parents.
(3) The formula described in subsection (1) of this section must be designed to ensure, as a minimum, that the child for whom support is sought benefits from the income and resources of the absent parent on an equitable basis in comparison with any other minor children of the absent parent.
(4) The administrator, an administrative law judge or a court shall reduce or increase the child support obligation to be paid by the obligor and determined under the formula described in subsection (1) of this section in consideration of the costs of [health insurance] a health benefit plan incurred by the obligor or obligee, as provided in [ORS 25.255] sections 2 to 13 of this 2003 Act.
SECTION 16. ORS 25.375 is amended to read:
25.375. Except as provided in section 11 of this 2003 Act, withholding
under ORS 25.378 has priority over any other legal process under
SECTION 17. ORS 107.106, as amended by section 49a, chapter 73, Oregon Laws 2003 (Enrolled House Bill 2340), and section 83, chapter 75, Oregon Laws 2003 (Enrolled House Bill 2526), is amended to read:
107.106. (1) An order or judgment providing for the custody, parenting time, visitation or support of a child under ORS chapter 25, 107, 108, 109 or 110 or ORS 419B.400 or 419C.590 shall include:
(a) Provisions addressing the issues of:
(A) Payment of uninsured medical expenses of the child;
(B) Maintenance of insurance or other security for support; and
(C) Maintenance of a health [insurance] benefit plan for the child under sections 2 to 13 of this 2003 Act.
(b) A statement in substantially the following form:
______________________________________________________________________________
The terms of child support and parenting time (visitation) are designed for the child’s benefit and not the parents’ benefit. You must pay support even if you are not receiving visitation. You must comply with visitation orders even if you are not receiving child support.
Violation of child support orders and visitation orders is punishable by fine, imprisonment or other penalties.
Publicly funded help is available to establish, enforce and modify child support orders. Paternity establishment services are also available. Contact your local district attorney or the Department of Justice at (503) 373-7300 for information.
Publicly funded help may be available to establish, enforce and modify visitation orders. Forms are available to enforce visitation orders. Contact the domestic relations court clerk or civil court clerk for information.
______________________________________________________________________________
(2) The court or administrative law judge shall ensure the creation and filing of an order or judgment that complies with this section.
(3) This section does not apply to an action undertaken by the Division of Child Support of the Department of Justice or a district attorney under ORS 25.080.
SECTION 18. ORS 659A.885 is amended to read:
659A.885. (1) Any person claiming to be aggrieved by an unlawful practice specified in subsection (2) of this section may file a civil action in circuit court. In any action under this subsection, the court may order injunctive relief and such other equitable relief as may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay. A court may order back pay in an action under this subsection only for the two-year period immediately preceding the filing of a complaint under ORS 659A.820 with the Commissioner of the Bureau of Labor and Industries, or if a complaint was not filed before the action was commenced, the two-year period immediately preceding the filing of the action. In any action under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal. Except as provided in subsection (3) of this section:
(a) The judge shall determine the facts in an action under this subsection; and
(b) Upon any appeal of a judgment in an action under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (3).
(2) An action may be brought under subsection (1) of this section for the following unlawful practices: ORS 25.424, 399.235, 659A.030, 659A.040, 659A.043, 659A.046, 659A.063, 659A.069, 659A.100 to 659A.145, 659A.150 to 659A.186, 659A.203, 659A.218, 659A.230, 659A.233, 659A.236, 659A.250 to 659A.262, 659A.300, 659A.306, 659A.309, 659A.318 and 659A.421 (1) or (3) and section 10 of this 2003 Act.
(3) In any action under subsection (1) of this section alleging a violation of ORS 659A.040, 659A.069, 659A.100 to 659A.145, 659A.230, 659A.250 to 659A.262, 659A.318 or 659A.421 (1) or (3) or section 10 of this 2003 Act:
(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $200, whichever is greater, and punitive damages;
(b) At the request of any party, the action shall be tried to a jury;
(c) Upon appeal of any judgment finding a violation, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (1); and
(d) Any attorney fee agreement shall be subject to approval by the court.
(4) In any action under subsection (1) of this section alleging a violation of ORS 659A.203 or 659A.218, the court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $250, whichever is greater.
(5) All persons against whom any distinction, discrimination or restriction on account of race, religion, sex, marital status, color or national origin has been made by any place of public accommodation, as defined in ORS 659A.400, by any person acting on behalf of such place or by any person aiding or abetting such place or person in violation of ORS 659A.406 may bring an action against the operator or manager of such place, the employee or person acting on behalf of such place or the aider or abettor of such place or person. Notwithstanding subsection (1) of this section, in an action under this subsection:
(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory and punitive damages;
(b) The operator or manager of the place of public accommodation, the employee or person acting on behalf of the place, and any aider or abettor shall be jointly and severally liable for all damages awarded in the action;
(c) At the request of any party, the action shall be tried to a jury;
(d) The court shall award reasonable attorney fees to a prevailing plaintiff;
(e) The court may award reasonable attorney fees and expert witness fees incurred by a defendant who prevails only if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim or no reasonable basis for appealing an adverse decision of a trial court; and
(f) Upon any appeal of a judgment under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (1).
SECTION 19. The section captions used in this 2003 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 2003 Act.
SECTION
20. This 2003 Act being
necessary for the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2003 Act takes effect
Approved
by the Governor
Filed
in the office of Secretary of State
Effective
date
__________