If you believe the title indicates we will be discussing eye chart examination, think again. However, you will see clearly how important and at the same time how simple it is for family law practitioners to protect the rights of minor children with respect to health care coverage, whether you are representing the custodial or non-custodial parent; regardless of whether the parents were previously married, or not; and despite medical insurance plan definitions to the contrary.

The Qualified Medical (Child) Support Order, hereafter referred to as QMSO, requires employers to make group health care coverage available to the non-custodial children of their employees. This is now possible because the Omnibus Budget Reconciliation Act of 1993 (OBRA-93) was enacted, and a new section 609 was added to the Employee Retirement Income Security Act of 1974 (ERISA).

In practical terms this means that if the plan administrator for the employer's medical insurance plans receives a qualified medical support order that satisfies the requirement of ERISA Section 609, then the administrator of the plan must adhere to the terms of the QMSO regarding the provision of group health care coverage for the employee's non-custodial children. All states were required to enact laws relating to medical child support under Section 1908 of the Social Security Act and so most QMSOs are actually to be administered pursuant to laws enacted by the states.

The Balanced Budget Act of 1997, and the Child Support Performance and Incentive Act of 1998, will result in better assistance and enforcement on the state level, with certain funding incentives and project implementation assistance in the works.

Although I promise to provide you with a sample QMSO at the conclusion of this article, if you wish to conduct independent research, and go to the source for all language that should be in a QMSO, refer to Section 609 of ERISA, which also follows this article.

The United States Department of Labor oversees the ERISA preemption clause, which is concerned with the administration and operation of state programs or state laws relating to employee benefit plans. Effective August 10, 1998, an employer must honor a qualified medical support order regarding the provision of health care benefits to the non-custodial child of an employee/parent.

For the purposes of satisfying the definition of a QMSO you must have a judgment, decree or order, including an order which incorporates a settlement agreement, issued by a court of competent jurisdiction that (1) provides for child support with respect to a child of a participant under a group health plan or provides for health care coverage to such a child; (2) is made pursuant to a state domestic relations law; (3) relates to health care benefits under such plan; or (4) enforces a law relating to medical child support described in Section 1908 of the Social Security Act (as added by Section 13623 of the Omnibus Budget Reconciliation Act of 1993) with respect to a group health plan.

You are correct if you notice that there appears to be a similarity with the QMSO, the definitions for a qualified domestic relations order (QDRO) under Internal Revenue Code, and ERISA provisions for the division of pension benefits under an employer's retirement program.

Like the QDRO, we must include certain information in the QMSO for the order to be considered qualified. Minimally the following must be specified: (1) the name and last known mailing address of the participant and the name and mailing address of each alternate recipient (a/k/a the child of a participant who is recognized under a QMSO as having a right to enrollment in a group health plan with respect to the non-custodial parent); (2) a reasonable description of the type of coverage to be provided by the plan to each alternate recipient, or the manner in which such type of coverage is to be determined; (3) the period to which such order applies; and (4) each plan to which the order applies. Such an order will succeed only if the specific form of benefit or option is available under that specific plan, except to the extent to meet the requirements of the Social Security Act added by OBRA-93.

The Social Security Act requires all states to enact laws relating to medical child support and prohibit employers from denying coverage because a child was born out of wedlock; was not claimed as a dependent on the parent's federal tax return; or if the child did not reside with the parent or in the insurer's service area. In addition, the child must be allowed to enroll at any time, not just open season. If the non-custodial parent fails to properly enroll the child, the custodial parent must be allowed to enroll the child directly with the employer's group health plan. In addition, once enrolled, the insurer or health plan may not disenroll such child until the QMSO is no loner in effect or the insurer is assured that the child transferred to an equal or better medical insurance plan.

As a practice point, I recommend that you and your secretary develop a friendly, nonadversarial, relationship with the various plan administrators for the medical insurance programs that you will be contacting. I recommend that you submit a draft or proposed QMSO to the administrator in sufficient time before the pendente lite or merits hearing on child support.

Naturally, you should also be familiar with Maryland's statutory scheme for implementing the previously listed federal ERISA and OBRA laws. Before drafting a QMSO you should review Title 12 of the Family Law Article, Sections 12-101 and 12-102 and 102.1. Section 12-101(d)(ii) which is reflected in Subtitle 1. General Provisions of Title 12 Child Support states that the court may order either (emphasis added) parent to pay all or part of medical support for a child, including neonatal expenses. Section 12-102 authorizes the court to include in any (emphasis added again) support order a provision requiring either parent to include the child on that parent's health insurance coverage if the parent can obtain insurance through either an employer or other group coverage and the child may be included at a reasonable cost to that parent. Although Section 12-102(c) allows for the provision of health insurance for the child to be contained in the earnings withholding order for child support, as a practical matter, please consider segregating the QMSO from the earnings withholding order, since they are two separate sources of support for the child and are administered, usually, by separate entities.

The signed QMSO must be served on the employer by certified mail, return receipt requested, or as provided in Section 10-122 of the Family Law Article, which enumerates the provisions for service of earnings withholding orders. Section 12-102(d)(3) clearly states that the employer shall deduct the premiums for the health insurance coverage from the earnings of the employee and the employer shall pay the premiums to the insurer to the extent consistent with federal law.

Our Maryland statute, which became effective July 1, 1994, permits the parent, the child support agency, or the Department of Health and Mental Hygiene to enroll the child in any health insurance coverage available to the (non-custodial) parent without regard to any enrollment season restrictions. Thereafter, the employer must notify both parents or the child support agency that the child was enrolled or the expected date the child will be enrolled; or that the child could not be enrolled, and must also provide the employee's Social Security number; the name, address and telephone number of the insurer; the policy number; group number; and the effective date of coverage and schedule of benefits. If the policy for the child should ever terminate, the employer is required to notify the custodial parent of same. In the event that an employer wilfully fails to comply with the terms of the QMSO, 12-102(g) provides for the parent to bring a civil action against the employer. In the event that the non-custodial parent changes employers, the statute provides that the QMSO shall be binding on present and future employers upon whom such an order is served.

The existence of a QMSO does not bar the court from ordering the payment of uninsured medical expenses, other health care costs or health insurance premiums. Either parent may seek modification of the QMSO by consent, provided the best interests of the child are met and pursuant to 12-102(e), or by filing a petition to modify based upon a material change in circumstances. The provisions of Section 12-1-2, which were enacted in 1994, should be construed prospectively and are not to have any effect on child support orders issued or modified prior to July 1, 1994.

I recommend that attorneys commence using the QMSO for the preservation of the benefit for the minor child. The QMSO places the burden on the employer to conform with the terms of the state court order and also has the additional teeth of federal enforcement. Since the elements of the QMSO are formulaic, plan ahead in your litigation strategy to send the proposed QMSO to the medical insurance plan administrator for prior approval before your day in court. You may also want to add another specific request in your discovery for the name, address and phone number of the plan administrator, in the event that your client or counsel for the other parent is not aware of this information.

Appended is a sample of a QMSO from our office practice forms which I have used in the past, and as a practice form, I can't precisely identify it's pedigree and it's contents are subject to revision depending on the facts of a particular case or the changing requirements of state and federal laws.