72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 865
A-Engrossed
House Bill 2095
Ordered by the House March 31
Including House Amendments dated March 31
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Attorney General Hardy
Myers for Department of Justice)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Requires court or enforcing agency issuing child support order
to direct obligor { - or obligee - } to provide health care
coverage to child under health benefit plan under certain
circumstances. Permits court or agency to issue medical child
support order or notice requiring obligor's employer or
{ - union - } { + plan administrator + } to enroll child in
health benefit plan.
Requires employer { - or union - } to withhold obligor's
contribution to plan and transmit amount withheld to plan
administrator. Allows obligor to contest withholding. Requires
employer { - or union - } to notify enforcing agency when
obligor's relationship with employer { - or union - }
terminates. Requires enforcing agency to notify employer or
{ - union - } { + plan administrator + } when support order
requiring health care coverage is no longer in effect.
{ + Protects employer from liability when complying with
provisions of medical support notice. + }
Permits civil action when employer or { - union - }
{ + plan administrator + } fails to implement medical child
support order or notice. Makes discrimination against obligor
unlawful employment practice. Permits civil action and civil
penalties for unlawful employment practice.
Declares emergency, effective October 1, 2003.
A BILL FOR AN ACT
Relating to health care coverage for child under child support
order; creating new provisions; amending ORS 25.275, 25.375 and
107.106; repealing ORS 25.255; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
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 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 to recover compensatory damages 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 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 { - which - } { + 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 { - which - } { + 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 { - insure - } { + 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 of the Division of Child
Support - } { + administrator + }, an administrative
{ - hearings - } { + hearing + } officer 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 Oregon law against the same income.
SECTION 17. ORS 107.106 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 { - ,
domestic relations court clerk or the Department of Human
Services at (503) 378-5567 for information - } { + 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 { - hearings - } { + hearing + } officer
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. { + 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 19. { + 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
October 1, 2003. + }
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