An insured loses coverage in mid-October. She is able to enroll under her husband's plan due to loss of coverage. Husbands plan effective date is November 1. She then elects COBRA on 11/15 retro back to the qualifying event. Can she elect COBRA since she has coverage under her spouse?

The code and erisa provisions provide that cobra coverage may end on the date the qualified beneficiary first becomes, after the date of the election, covered under a group health plan. The Sup. Ct. in Geissal v Moore (1998?) held that this is to be applied literally.

Since your insured had coverage under her spouse plan on November 1, before the November 15 date of her cobra election, her cobra coverage may not be cut off for that reason.

She's obviously electing COBRA for the 16 days that she was not qualified under her husband's plan. Since she has 60 days in which to make her decision as to whether or not she wanted COBRA, this is perfectly acceptable. Sounds like she's only going to be on your plan 1 month, so it shouldn't be too much of a burden for you going forward.