The Office of General Counsel issued the following informal opinion May 21, 2001, representing the position of the New York State Insurance Department.

Re: Pre-existing Condition and N.Y. Ins. Law § 4318 (a) and (b) (McKinney 2000)

Question Presented:

Did a Health Maintenance Organization err by denying coverage for a pre-existing health condition on the basis of an alleged lapse in coverage?


Yes, in accordance with N.Y. Ins. Law § 4318 (b) (McKinney 2000) there was no lapse in health insurance coverage.


About a year ago, while residing and working in a state outside of New York State, an insured was diagnosed as having a nerve disease. The insured retained health insurance benefits for 30 days after the last date of employment. The insured’s former employer did not provide the insured with the requisite Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") information until more than 60 days after the last date of employment.

The insured began a new job in New York within 17 days after leaving the previous job, and had to wait three months to become eligible for health insurance with the insured’s current Health Maintenance Organization ("HMO"). The HMO denied coverage for a pre-existing nerve disease condition on the ground that there was an alleged lapse of more than 63 days in coverage.


The controlling statute is N.Y. Ins. Law § 4318 (McKinney 2000), which states in pertinent part:

(a) In determining whether a pre-existing condition provision applies to a covered person, the contract shall credit the time the covered person was previously covered under creditable coverage, if the previous creditable coverage was continuous to a date not more than sixty-three days prior to the enrollment date of the new coverage….

(b) …For purposes of this section ‘enrollment date’ means the first day of coverage of the individual under the contract or, if earlier, the first day of the waiting period that must pass with respect to an individual before the individual is eligible to be covered for benefits. . . .

Since the insured maintained insurance under the previous job for 30 days after the employment termination date, and the first day of the waiting period began 17 days after the insured left the previous job, there was no lapse of coverage.

For further information you may contact Associate Attorney Jeffrey A. Stonehill at the New York City Office.