
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1024                              DAVID AND CAROLYN GASKELL,                               Plaintiffs, Appellants,                                          v.                       THE HARVARD COOPERATIVE SOCIETY, ET AL.,                                Defendants, Appellees.                                _____________________        No. 93-1102                              DAVID AND CAROLYN GASKELL,                                Plaintiffs, Appellees,                                          v.                       THE HARVARD COOPERATIVE SOCIETY, ET AL.,                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                              Torruella, Oakes* and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________                                    ____________________        *Of the Second Circuit, sitting by designation.            Norman H. Jackman with  whom Martha M. Wishart and Jackman &  Roth            _________________            _________________     _______________        were on brief for plaintiffs.            Francis  J. Lawler with  whom Robert  M. Shea and  Peabody & Brown            __________________            _______________      _______________        were on brief for defendants.                                 ____________________                                   August 25, 1993                                 ____________________                                          2                    CYR, Circuit Judge.   This case presents several impor-                    CYR, Circuit Judge.                         _____________          tant issues relating to group health plan "continuation coverage"          under  the  Employment Retirement  Income  Security  Act of  1974          ("ERISA"), 29 U.S.C.   1001 et seq., as amended by the Comprehen-                                      __ ____          sive Omnibus  Budget Reconciliation  Act of 1985  ("COBRA"), P.L.          99-272,  100 Stat.  222 (1986).   The  district court  ruled that          plaintiff  Carolyn  Gaskell,  wife  of  "covered  employee" David          Gaskell, was entitled to three years' continuation coverage under          COBRA, dating from her election of continuation coverage under an          ERISA employer-sponsored group health  insurance plan.  The court          denied a related subrogation claim brought by the Gaskells in the          name  of their  current  insurer.   The  district court  rejected          plaintiffs' requests for  statutory penalties, punitive  damages,          and attorney fees.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    David Gaskell  was a  longtime employee of  the Harvard          Cooperative  Society  ("Coop"), which  provided Blue  Cross group          medical plan coverage for  its employees and their families.   On          January 14,  1987, David  went on  full disability  leave, during          which he received full salary and benefits, including Blue  Cross          group plan coverage  for himself and Carolyn,  apparently at Coop          expense.  More  than a  year later, on  February 29, 1988,  still          unable to work,  David terminated his  employment with the  Coop,                                          3          retroactive to January 14, 1988.                    Under COBRA,  an employer that sponsors  a group health          insurance  plan  must offer  employees and  "qualified beneficia-          ries," including spouses and dependent children,  the opportunity          to continue their health insurance  coverage, at group rates  but          at  their own  expense, for  at least  eighteen months  after the          occurrence of a  "qualifying event"  and notice  to the  affected          employee.  See  29 U.S.C.    1161-68.  A  "qualifying event"  in-                     ___          cludes  a  "termination . . .  , or  reduction  of hours,  of the          covered employee's employment"  which, "but for the  continuation          coverage under this part, would result in the loss of coverage of          a  qualified beneficiary."   Id.  at   1163(2).   In  April 1988,                                       ___          following  David's  resignation, the  Coop  sent  a COBRA  notice          informing him of his  statutory right to continue his  Blue Cross          group plan coverage for  eighteen months, beginning July 1, 1988.          On  April 26, 1988,  David  elected  "continuation coverage"  for          himself and Carolyn.                    Within a  year, the  Gaskells learned that  David would          become  eligible for  Medicare  benefits beginning  July 1, 1989.          Although Medicare eligibility  would render David  ineligible for          "continuation coverage" after July 1,  1989, see id. at   1162(2)                                                       ___ ___          (D)(ii), it also would serve as a new "qualifying event," see id.                                                                    ___ ___          at   1163(4), and make Carolyn eligible for three years' "contin-                                 _______          uation coverage" under the  Coop group plan with Blue Cross.  See                                                                        ___          id.  at   1162(2)(A)(ii).  At  about the same  time, however, the          ___          Gaskells learned  that the  Coop intended to  terminate its  Blue                                          4          Cross group plan and adopt a self-funded insurance plan  adminis-          tered by Benefit Plans Northeast ("BPN"), effective July 1, 1989.          As the  new BPN-administered plan  would not be  "convertible" to          individual coverage at the end of Carolyn's continuation coverage          period,  the  Gaskells  decided  to  exercise  their  "conversion          option"  under the Coop Blue  Cross group plan.   Accordingly, in          June 1989, prior to  the changeover in Coop  plan administration,          the Gaskells asked  the Coop to "convert" Carolyn's  group cover-          age, effective  July 1,  to individual direct-pay  coverage under          the Blue Cross Managed Major Medical Plan.                    The  coincidence  of   David's  Medicare   eligibility,          Carolyn's application for conversion to an individual policy, and          the Coop's change to  a self-funded plan, engendered considerable          confusion among  the  parties.   On August 30,  1989, Blue  Cross          began returning the Gaskells'  medical bills unpaid.  Blue  Cross          contended that its obligation  to provide Carolyn with individual          direct-pay coverage had terminated on June 30, 1989, concurrently          with  the expiration of its group plan arrangement with the Coop,          and  that any  Blue  Cross coverage  beyond  that date  would  be          available  only on the terms  imposed on new  applicants, viz., a                                                                    ____          240-day waiting  period and an exclusion  for preexisting medical          conditions.    Finding  these terms  unacceptable,  the  Gaskells          sought to continue Carolyn's coverage under the  Coop group plan,          then  being administered by BPN.  BPN refused, asserting that the          Coop's  obligation to provide  "continuation coverage" had termi-          nated  before the  change in  plan  administration took  place on                                          5          July 1,  1989.   After  several  unsuccessful  efforts to  obtain          satisfactory coverage,  the Gaskells  brought the  present action          against the  Coop, BPN,  James Argeros (Coop  president), Leonard          Cutler (BPN  president), and  Blue Cross, alleging  violations of          COBRA and Massachusetts law.1                    On  January 31, 1991, the Gaskells settled their claims          against Blue Cross, in return for,  inter alia, individual cover-                                              _____ ____          age for Carolyn under  the Blue Cross Managed Major  Medical Plan          retroactive  to  July 1,  1989.   The  retroactive  coverage  was          subject to a twenty percent co-payment.   As part of the  settle-          ment,  Blue Cross  assigned the  Gaskells its  subrogation rights          against  the remaining  defendants.   The  Gaskells then  amended          their complaint to add  a subrogation claim against the  Coop and          BPN, relating to the eighty percent of Carolyn's medical expenses          which Blue Cross had paid under the terms of Carolyn's individual          Blue Cross policy.                    On May 17, 1991,  acting on cross-motions for  judgment          on the  pleadings, the district court ruled that BPN and the Coop          were legally responsible under COBRA for providing  "continuation          coverage" of Carolyn's medical  expenses between July 1, 1989 and          July 1, 1991.    The  court  rejected the  Gaskells'  demand  for          "extra-contractual"  damages, and limited compensatory damages to          the twenty percent co-payment amount not retroactively covered by          Carolyn's individual  Blue Cross policy, at the same time reserv-                                        ____________________               1The Gaskells  later waived their  state-law claims  against          all defendants.                                          6          ing decision on their subrogation claim for the remaining  eighty          percent of  Carolyn's medical expenses.   See Gaskell  v. Harvard                                                    ___ _______     _______          Cooperative Soc'y, 762 F.  Supp. 1539, 1543-1544 & n.8  (D. Mass.          _________________          1991).  Shortly thereafter, in an unpublished order, the district          court  granted summary  judgment  against the  Gaskells on  their          subrogation claim,  ruling that  Blue Cross "possessed  no rights          pursuant  to the  Subscriber Certificate  against [the  Coop] for          reimbursement  of any  monies  paid  towards [Carolyn's]  medical          bills."  The  individual claims against Leonard  Cutler, as "plan          administrator," were  dismissed on October 6, 1992.   The parties          stipulated to the  dismissal of the remaining  count against BPN,          and final judgment was entered on December 14, 1992.  This appeal          followed.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          Standards of Review          Standards of Review          ___________________                    We review a  grant of summary judgment de novo, employ-                                                           __ ____          ing the same  criteria incumbent  upon the district  court.   See                                                                        ___          Vanhaaren v. State  Farm Mut. Auto. Ins. Co., 989  F.2d 1, 3 (1st          _________    _______________________________          Cir. 1993); High  Voltage Eng'g  Corp. v. Federal  Ins. Co.,  981                      __________________________    _________________          F.2d 596, 598 (1st Cir. 1992); Pedraza v. Shell Oil Co., 942 F.2d                                         _______    _____________          48,  50  (1st Cir.  1991), cert.  denied,  112 S.Ct.  993 (1992).                                     _____  ______          Summary judgment  is appropriate  where  "the pleadings,  deposi-          tions,  answers  to  interrogatories,  and  admissions  on  file,          together  with  the affidavits,  if any,  show  that there  is no          genuine issue as to any material  fact and that the moving  party                                          7          is entitled  to judgment as a  matter of law."   Fed. R.  Civ. P.          56(c); see Vanhaaren, 989  F.2d at 3; Canal  Ins. Co. v.  Benner,                 ___ _________                  _______________     ______          980 F.2d 23, 25 (1st Cir. 1992).  Similarly, on plenary review of          a  district court judgment on the pleadings under Rule 12(c), all          material allegations in the complaint  are credited in the  light          most favorable to the  plaintiff, see International Paper Co.  v.                                            ___ _______________________          Jay,  928 F.2d  480, 482  (1st Cir.  1991).   A dismissal  on the          ___          pleadings will be upheld  only if "'it appears beyond  doubt that          the plaintiff  can prove  no  set of  facts in  support of  [its]          claims  which  would entitle  [it] to  relief.'"   Id.  at 482-83                                                             ___          (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).                   ______    ______          Statutory Background          Statutory Background          ____________________                    COBRA was enacted in 1986, as a legislative response to          "reports of the  growing number of  Americans without any  health          insurance coverage and the decreasing willingness of our Nation's          hospitals to provide  care to  those who cannot  afford to  pay,"          H.R.   Rep. No. 241, 99th  Cong., 2d Sess. 44,  reprinted in 1986                                                          _________ __          U.S.C.C.A.N. 579,  622.2   In  "an  effort to  provide  continued                                        ____________________               2Although COBRA  has been amended several  times, see, e.g.,                                                                 ___  ____          Tax Reform Act of  1986, P.L. 99-514 (October 22,  1986),   1895-          (d); Technical and Miscellaneous Revenues Act of 1988,  P.L. 100-          647 (November 10, 1988),   3011(a); and Omnibus Budget Reconcili-          ation  Act of  1989 ("OBRA"),  P.L. 101-239  (December 19, 1989),             6703-6710, 6801,  7862(c), 7891(d), except  as otherwise indi-          cated we refer to the January, 1987 version as "COBRA."               For a fuller description of COBRA's enactment, see Thomas H.          Somers, COBRA: An Incremental  Approach to National Health Insur-                  _________________________________________________________          ance, 5 J. Contemp. Health L.  & Probs. 141, 141-2 (1992) (noting          ____          that  COBRA's "continuation  coverage"  provisions  were  enacted          "without  deliberation  . .  . ,  in  the process  amending three          distinct statutes,"  and "invit[ing] a fair  amount of regulatory          confusion.").                                          8          access to  affordable private health insurance for  some of these          individuals," H.R.  Rep. No. 241,  at 44, without  increasing the          "staggering budget deficits now facing the United States," see S.                                                                     ___          Rep.  No. 146, 99th Cong., 2nd Sess. 3, reprinted in 1986 U.S.C.-                                                  _________ __          C.A.N. 42, 43, COBRA compels employers that sponsor certain group          health plans to provide "qualified beneficiaries" with the option          of receiving  self-paid "continuation coverage," at  no more than          102%  of group rates, for eighteen or thirty-six months after the          occurrence of  a "qualifying event" which  would otherwise result          in  a termination of coverage.  See 29 U.S.C.   1161(a), 1162(2)-                                          ___          (A).3                    The "continuation  coverage" required by  COBRA must be          "identical  to the coverage provided  under the plan to similarly          situated beneficiaries  under  the plan  with respect  to whom  a          qualifying  event has  not  occurred," 29  U.S.C.   1162(1),  and          "[i]f  coverage is  modified  under the  plan  for any  group  of          similarly  situated  beneficiaries, such  coverage shall  also be          modified in the same manner for all individuals who are qualified          beneficiaries under the  plan pursuant to  [COBRA] . . . ."   Id.                                                                        ___          An employer which fails  to provide elective "continuation cover-          age" under the terms of the statute is subject to unfavorable tax                                        ____________________               3The period of entitlement to "continuation coverage" may be          extended  or shortened,  depending on  the occurrence  of certain          events  within the preceding coverage term.  See, e.g., 29 U.S.C.                                                       ___  ____            1162(2)(A)(ii)  (occurrence  of  additional  qualifying  event,          within initial period of "continuation coverage," may extend term          of COBRA  coverage); id.  at   1162(2)(A)(v)  (covered employee's                               ___          eligibility for "continuation coverage" terminates  with Medicare          eligibility).                                          9          treatment,  see  26 U.S.C.    4980B  (1989),  amending 26  U.S.C.                      ___                               ________            162(i)(2)  (1988), and  to  civil suit  by affected  "qualified          beneficiaries," see  29 U.S.C.    1132(a).  A  plan administrator                          ___          which  fails to  provide  a "qualified  beneficiary" with  timely          notice of her rights under COBRA is subject to personal liability          not  exceeding $100  per day.   See  29 U.S.C.    1132(c)(1); see                                          ___                           ___          generally Jeffrey  D. Mamorsky, Employee Benefits  Law: ERISA and          _________                       _________________________________          Beyond,   10.07  et  seq. (2d  ed.  1993) (discussing  COBRA  and          ______           __  ____          subsequent amendments).          The Gaskells' Coverage          The Gaskells' Coverage          ______________________                    The Coop does not  contest its obligation, under COBRA,          to provide  the Gaskells  with "continuation coverage,"  at their          election  and expense, for a minimum of eighteen months after the          occurrence  of a "qualifying event."  See  762 F. Supp. at 1541.                                                 ___          Instead, the  Coop contends that the  relevant "qualifying event"          occurred on  January 14, 1987, when  David Gaskell first  went on          full  disability leave, "reducing his  hours" from forty per week          to zero.   See 29 U.S.C.   1163 ("reduction of hours . . . of the                     ___          covered  employee's employment"  as potential  qualifying event).          On the Coop's reasoning, therefore, its eighteen-month "continua-          tion  coverage" obligation expired on July 14, 1988, and the Coop          had no legal duty to continue Carolyn's coverage further based on          David's  subsequent Medicare  eligibility  on July 1,  1989.   We          agree with the Coop's reading of  the statute, but find no record          evidence  to  support its  allegation  that  group plan  coverage          terminated as a result of David's disability leave on January 14,                                          10          1987.   Accordingly, we must  remand for further  fact finding on          this issue.                    Under COBRA, "the  term 'qualifying event' means,  with          respect to any covered employee, any . . . [termination or reduc-          tion in hours] which, but for the  continuation coverage required                         _____  ___ ___ ___  ____________ ________ ________          under  this part,  would  result in  the  loss of  coverage of  a          _____  ____ ____   _____  ______ __  ___  ____ __  ________ __  _          qualified   beneficiary . . . ."    29  U.S.C.    1163  (emphasis          _________   ___________          added).   As the district court  noted, see 762 F.Supp.  at 1542,                                                  ___          this statutory language offers  no explicit guidance in determin-          ing  the  relevant "qualifying  event"  where, as  here,  the em-          ployee's termination or reduction in hours does not coincide with          the  "loss  of coverage"  under the  employer's  plan.   In these          circumstances, the district court elected to view the "qualifying          event" as "the point at which [the employee] experience[d] a loss                                                       __________ _  _ ____          of coverage as a consequence of  the reduction in hours."  Id. at          __ ________                                                ___          1543 (emphasis added).  Other courts,  by contrast, have measured          the  eighteen-month  period  from  the event  itself,  viz.,  the                                       ____  ___ _____  ______   ____          employee's termination  or reduction  in hours,  so long  as that          event "eventually resulted in the loss of . . . health coverage."                 __________          See, e.g., Phillips  v. Riverside,  Inc., 796 F.  Supp. 403,  411          ___  ____  ________     ________________          (E.D. Ark.  1992) (holding that employer's "gratuitous" provision          of  three months'  continued  coverage must  be credited  towards          employer's eighteen-month COBRA  "continuation coverage"  obliga-          tion once belated  notice has  been given to  the employee);  see                    _______                                             ___          also  Hubicki v. Amtrak Nat.  Passenger R. Co.,  808 F.Supp. 192,          ____  _______    _____________________________          197 (E.D.N.Y. 1992) (noting, without resolving, possible alterna-                                          11          tive readings of statute).                    Since  we agree  with  the district  court that  either          reading is plausible, based on the statutory language, we consult          the  available legislative history.   See Concrete Pipe & Prods.,                                                ___ _______________________          Inc. v. Construction Laborers Pension Trust, 113 S.Ct. 2264, 2281          ____    ___________________________________          (1993)  ("we turn, as . . . in  the usual case of textual ambigu-          ity, to the legislative purpose as revealed by the history of the          statute");  United States  v.  Alky Enterprises,  Inc., 969  F.2d                      _____________      _______________________          1309, 1314  (1st Cir. 1992) ("where the  language of a statute is          ambiguous  on its face, we  should look . . .  to the legislative          history in order to  ascertain Congressional intent"); see gener-                                                                 ___ ______          ally Stephen J.  Breyer, On  The Uses of  Legislative History  in          ____                     ________________________________________          Interpreting Statutes, 65  S. Cal. L. Rev. 845 (1992) (discussing          _____________________          proper use of legislative  history in ascertaining  congressional          intent where statute is  ambiguous).  COBRA's legislative history          leads us to conclude  that Congress intended an  employee's eigh-          teen-month period  of continuation coverage to  commence with the                                                          ________ ____ ___          event leading,  under the terms of the plan, to loss of coverage,          _____ _______   _____ ___ _____ __ ___ ____  __ ____ __ ________          rather than upon the loss of coverage itself.                    First, while the House Reports accompanying the various          versions  of the statute are  silent or ambiguous  on the issue,4          the  "continuation coverage"  provisions in  the House  bill were                                        ____________________               4See  H.R.   Rep.  No. 241,  99th Cong.,  2d  Sess. 44,  45,                ___          reprinted  in 1986  U.S.C.C.A.N.  579, 622-23  (no discussion  of          _________  __          issue); H.R. Rep. No. 320, 99th Cong., 2d Sess. 319-20, reprinted                                                                  _________          in 1986  U.S.C.C.A.N. 756, 970-71  (noting, without  elaboration,          __          that   1163 "defines qualifying event").                                          12          incorporated virtually  without change into the  final Conference          bill,5  and the  Report of  the Senate  Finance Committee,  which          accompanied the final Conference version, is reasonably explicit.          It provides, in pertinent part, that:                    Th[e] 18-month period [of continuation cover-                    age] includes, and is not in addition to, any                    continuation period presently permitted under                    local law.   Thus,  for example, if  the plan                    presently  provides  that dependent  coverage                    ceases  one month  after the  date of  an em-                    ployee's  death, the bill  would require that                    beneficiaries be entitled  to elect  continu-                    ation coverage for up  to 18 months following                    the  date of  death, not the  18-month period                    beginning with the actual cessation of cover-                    age one month after the employee's death.          See S.  Rep. No. 146, 99th  Cong., 2d Sess. 3,  365, reprinted at          ___                                                  _________ __          1986 U.S.C.C.A.N. 42, 324.  We perceive no basis, in the legisla-          tive  history,  for the  Gaskells'  proposed  distinction between          "blended"  coverage  and  "stacked"  coverage.6    Moreover,  the          Senate Finance  Committee Report, referring  to "any continuation                                                           ___          period presently permitted," see id. (emphasis added), appears to                                       ___ ___          undermine the basis for such a distinction.                    Second, the Proposed Regulations issued by the Treasury          Department, the only administrative interpretation of the statute                                        ____________________               5Compare  Pub.L. 99-272    10001-02 with H.R. Conf. Rep. No.                _______                            ____          99-543,  at 162-72 (text of  H.R. 3128,     10001-02 (rejected by          the House, December 19, 1985)).               6As explained in  the Gaskells' appellate  brief, "blending"          of  coverage  occurs when  "the employer  wishes  to pay  for the          employee's coverage for part  or all of the COBRA  period," after          giving  timely  notice to  the employee  of  the occurrence  of a          qualifying  event.    "Stacking"  of coverage  occurs  "when  the          employer provides  coverage . . . for some  period after termina-          tion without complying with COBRA and then gives the notice."                                          13          proffered to date, appear to take a similar position.  See  Prop.                                                                 ___          Treas. Reg. 1.162-26, 52 Fed. Reg. 22,716 (proposed Apr. 6, 1987;          to be codified at 26 C.F.R. pt. 1), at Q&A-18 ("a  loss of cover-          age  need not occur immediately  after the event,  so long as the          loss of coverage will occur before  the end of the maximum cover-          age period");  see also id.  at Q&A-39 ("The  end of  the maximum                         ___ ____ ___          coverage period is measured from the date of the qualifying event          even if  the qualifying event does not result in a loss of cover-          ____ __  ___ __________ _____ ____ ___ ______ __ _ ____ __ ______          age under  the plan  until some  later date")  (emphasis added).7          ___ _____  ___ ____  _____ ____  _____ ____          The Proposed  Treasury Regulations  have not yet  been finalized,          are apparently  on hold  pending further  revisions, see  56 Fed.                                                               ___          Reg. 53803-03  (1991), and, accordingly,  are not  authoritative.                                                        ___  _____________          See Oakley v. City  of Longmont, 890 F.2d  1128, 1133 (10th  Cir.          ___ ______    _________________          1989) (Treasury Department's interpretation of COBRA not authori-          tative  "[u]ntil  the  agency completes  formal  rule-making  and          promulgates  final regulations"),  cert.  denied,  494 U.S.  1082                                             _____  ______          (1990);  see also Sirkin v. Phillips Colleges, Inc., 779 F. Supp.                   ___ ____ ______    _______________________          751, 755  (D. N.J.  1991) (declining  to apply  proposed Treasury          regulation).  Nevertheless, pending promulgation of final regula-                                        ____________________               7In  enacting COBRA,  Congress delegated  responsibility for          the  issuance  of  interpretive  regulations  to  three  separate          agencies:  the Departments  of  Treasury, Labor,  and Health  and          Human Services. See,  e.g., 26 U.S.C.   7801,  7805 (Secretary of                          ___   ____          Treasury authorized  to "prescribe all needful  rules and regula-          tions  for  the enforcement  of  this title");  29  U.S.C.   1168          (Secretary of Labor authorized to "prescribe regulations to carry          out the  [continuation coverage] provisions"). To  date, only the          Treasury  Department has proposed  regulations under the statute.          See  generally Johnson  v.  Reserve Life  Ins. Co.,  765 F. Supp.          ___  _________ _______      ______________________          1478, 1480-83 (C.D. Cal.  1991) (discussing regulatory overlap in          COBRA provisions).                                           14          tions, the  Internal Revenue Service has announced  that it "will          consider compliance with the  terms of these proposed regulations          to constitute good faith compliance with a reasonable interpreta-          tion  of the statutory requirements."   See 52  Fed. Reg. 22,716.                                                  ___          Accordingly, some courts have relied on the Proposed Regulations,          notwithstanding  their interim  status,  to define  the scope  of          employers' duties under COBRA.   See Branch v. G. Bernd  Co., 955                                           ___ ______    _____________          F.2d 1574, 1581  (11th Cir. 1992) (finding that  proposed regula-          tions "represent  the proper  construction of  COBRA in  light of          Congress'  intent");   see  also  Lincoln  Gen.   Hosp.  v.  Blue                                 ___  ____  _____________________      ____          Cross/Blue  Shield of  Nebraska, 963  F.2d 1136,  1142 (8th  Cir.          _______________________________          1992) (Proposed Regulations show "regular practice" under COBRA);          Communications  Workers of America v.  NYNEX Corp., 898 F.2d 887,          __________________________________     ___________          888-89 (2d Cir. 1990) (citing Proposed Regulations).8                    Finally,  our reading  accords with  the interpretation          adopted by  Congress in amending COBRA  through the Miscellaneous          ERISA Amendments Act of 1989.  See H.R. No. 101-247, 101st Cong.,                                         ___          1st Sess.  52 (1989), reprinted  in 1989 U.S.C.C.A.N.  1906, 1944                                _________  __          (under the original  version of the  statute, "[i]f the  laid-off          employee . . . elects  continuation coverage, the  maximum period          of that  coverage is  measured from the  date of the  layoff, al-                                ________ ____ ___  ____ __ ___  ______          though the period an employer has to  notify the employee that he                                        ____________________               8Moreover,  we note  that the Proposed  Treasury Regulations          are invoked, at various  points, by both parties in  their appel-          late briefs.  Cf. W.R.  Grace & Co. v. United States  E.P.A., 959                        ___ _________________    _____________________          F.2d 360, 366 n.14  (1st Cir. 1992) (agency's  interim, non-final          regulations do  not control appeal,  but may  be considered  upon          both parties' application "for  the limited purpose of bolstering          . . . analysis").                                          15          or  she has  the right  to elect  continuation coverage  does not          begin to  run until  group health  coverage is  lost.") (emphasis          added).   Although the views  of a subsequent  Congress obviously          are  not binding in determining the intent of an earlier legisla-          ture, see, e.g., United States  v. American Heart Research  Fund,                ___  ____  _____________     _____________________________          No.  92-2108,  slip op.  at 8  (1st  Cir. June 18,  1993); United                                                                     ______          States v. Bay  State Ambulance  & Hosp. Rental  Serv., Inc.,  874          ______    _________________________________________________          F.2d 20, 31 (1st Cir. 1989), "such views are entitled to signifi-          cant  weight . . . and particularly so when the precise intent of          the enacting  Congress is obscure."   Seatrain Shipbuilding Corp.                                                ___________________________          v.  Shell Oil Co., 444  U.S. 572, 596  (1980) (citation omitted);              _____________          see also United States v. Ven-Fuel, Inc., 758 F.2d 741, 758  (1st          ___ ____ _____________    ______________          Cir.  1985); Roosevelt  Campobello  Int'l Park  Comm'n v.  United                       _________________________________________     ______          States  E.P.A., 711 F.2d  431, 436-37  (1st Cir.  1983).   As the          ______________          accretion of  evidence is compelling,  we conclude that  the Gas-          kells' eighteen-month "continuation coverage" period ran from the          date  of the event which triggered David's loss of benefits under          the terms of the Coop's  group insurance plan, and not  from July          1,  1988, when the Coop ceased its voluntary provision of employ-          er-paid group plan insurance and the Gaskells' self-paid "contin-          uation coverage" commenced.9                                        ____________________               9We acknowledge  the potential  harsh effects of  our inter-          pretation, which effectively shifts to  "qualified beneficiaries"          the  responsibility to  ascertain when  a "qualifying  event" has          occurred  which  would  eventuate in  the  inexorable  loss  of a          contract-right to coverage  under the employer's plan     even if          that  event precedes by  days or months  the actual  loss of plan                                                       ______          coverage, the provision of notice by the plan  administrator, and          the  commencement of  any unexpired  "election"  period.   See 29                                                                     ___          U.S.C.   1165(1)(A) ("election period . . . begins not later than                                          16                    An important  issue remains:  whether,  under the terms          of  the Coop's group insurance  plan, David's loss  of group plan          eligibility inexorably  was triggered by the  commencement of his          disability   leave   (January 14,  1987),   by   his  resignation          (January 14, 1988), or by some  other event.  It is the  terms of          the plan that matter in defining the appropriate "trigger"; thus,          David's reduction in hours is  not a "qualifying event" if  it is          not so  designated in the plan, even if it might have been desig-                                                     _____ ____ ____          nated as such, and regardless of the fact that it  may ultimately          have led to the eventual occurrence of a "qualifying event" which               ___ __          was so designated.  See, e.g., Jachim  v. KUTV, Inc., 783 F.Supp.                              ___  ____  ______     __________          1328,  1332  (D.  Utah  1992) (rejecting  employee's  claim  that          "reduction in hours" was a "qualifying event," where plan provid-          ed no cessation of coverage until employee's actual termination).                    The  record does not contain  a copy of  the Blue Cross                                        ____________________          the  date  on which  coverage terminates").    For example,  if a          "qualified  beneficiary" of  a  plan which  offers no  conversion          option  fails to  recognize the  covered employee's  reduction in          hours as a  "qualifying event," and no notice is  provided by the          plan  administrator,  the  qualified  beneficiary  may  find  her          continuation coverage  abruptly  terminated, some  months  later,          with little or no time to arrange for alternative insurance.  The          Gaskells  argue, with  considerable  force, that  this result  is          inconsistent with COBRA's general remedial purpose,  see National                                                               ___ ________          Companies  Health Ben. Plan v. St. Joseph's Hosp., Inc., 929 F.2d          ___________________________    ________________________          1558,  1572-73 (11th Cir. 1991), to avoid sudden losses in cover-          age.  However, in the ordinary case, this sequence of events will          be forestalled  by the  plan administrator's provision  of timely          notice under 29 U.S.C.   1166(a) ("In accordance with regulations          prescribed by  the Secretary . . . . (4)  the administrator shall          notify . . . any qualified beneficiary with  respect to [a quali-          fying]  event  . . .  of  such beneficiary's  rights  under  this          subsection").  Penalties may be enforced against plan administra-          tors who fail to provide such notice.  See id. at   1132(c)(1).                                                 ___ ___                                          17          group insurance plan; and, with respect to the "triggering event"          which  led to  cessation  of plan  coverage,  the district  court          concluded  that "there  [was] no  evidence concerning  the Coop's          policy with regard to  the provision of benefits to  employees on          disability leave,"  see 762 F.Supp.  at 1541  n.4.  Since  we may                              ___          uphold the judgment on  the pleadings only if "it  appears beyond          doubt that the plaintiff can prove no set of facts  in support of                                             __ ___ __ _____          [its] claims  which  would entitle  [it]  to relief,"  Conley  v.                                                                 ______          Gibson, 355 U.S.  41, 45-46  (1957) (emphasis added),  and it  is          ______          impossible to determine from the present record whether going  on          full  disability leave would  automatically "trigger" a cessation          of David's  contractual entitlement to  employer-paid group  plan          insurance benefits, cf.  Charles v. Des  Plaines Pub. Co.,  Inc.,                              ___  _______    ____________________________          No. 91-C-01288 (N.D. Ill.  June 4, 1991), U.S. Dist.  LEXIS 7806,          *5 (noting employee's failure to allege facts showing entitlement                                                                ___________          to group  insurance during disability leave),  the district court          judgment was  at least  premature.10  We  accordingly vacate  the          judgment, and remand for further proceedings.                                        ____________________               10For similar reasons,  we decline to rule  on the Gaskells'          alternate argument, that principles of equitable estoppel require          the Coop  to provide "continuation  coverage" under its  plan for          eighteen  months beyond  July 1,  1988.   Even assuming  that the          defense  of equitable  estoppel is  available to  COBRA benefici-          aries,  upon a  proper  showing, where  the terms  of a  plan are          otherwise ambiguous, see National Companies Health Plan, 929 F.2d                               ___ ______________________________          at  1572-73,  a preliminary  showing  of  ambiguity is  required;          "'estoppel may not be  invoked to enlarge or extend  the coverage          specified in a contract.'" See id.  at 1572 n.13 (quoting Kane v.                                     ___ ___                _______ ____          Aetna  Life  Ins., 893  F.2d 1283,  1285  n.3 (11th  Cir.), cert.          _________________                                           _____          denied, 111  S.Ct. 232 (1990)).  Since  the Blue Cross group plan          ______          contract with  the Coop  is not  part  of the  record, we  cannot          determine whether the ambiguity showing can be met here.                                          18                    Since the remaining arguments raised by the Gaskells on          appeal  turn on the terms of the  plan contract, and the validity          of the district court's finding that "the Coop was . . . obligat-          ed  [under  the terms  of the  contract]  to provide  health plan          coverage  to the Gaskells for  a period beginning  July 1, 1988,"          see 762  F. Supp. at 1543,  appellate resolution of  these issues          ___          must  await evidence  of  the terms  of  the plan  contract,  and          district court reconsideration of  the Coop's COBRA liability, on          remand.   We  accordingly  vacate the  judgment,  and remand  for          further proceedings.                                          19                    The district court judgment is vacated and the case  is                    ___ ________ _____ ________ __ _______ ___ ___ ____  __          remanded for further proceedings consistent herewith.          ________ ___ _______ ___________ __________ _________                                                     20
