The Biden administration previously announced its intent to end the COVID-19 National Emergency (NE) and the COVID-19 Public Health Emergency (PHE) on May 11, 2023 (read our series introduction for more information). On April 10, 2023, President Biden signed a resolution moving up the end of the NE to April 10, 2023 (the PHE ended on May 11). The US Departments of Labor (DOL), Health and Human Services, and the Treasury (the Departments) issued a set of FAQs (available here) on March 29, 2023 (FAQs), which anticipated that the NE would end on May 11, 2023 (see our prior article explaining the FAQs). Plan sponsors should continue to treat May 11 as the end of the NE consistent with the FAQs until the Departments say otherwise.
During the COVID-19 pandemic, the Departments provided relief from certain benefit plan deadlines, including:
- The minimum 60-day election period for the Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation coverage.
- The date for making COBRA premium payments (45 days for the initial, then minimum 30-day grace periods).
- The date for individuals to notify the plan of certain qualifying events (divorce, dependent child aging out of plan coverage) or determination of disability as it relates to COBRA coverage.
- The date for providing a COBRA election notice (typically within 14 days after the plan receives notice of a qualifying event).
- The 30-day period (or 60-day period, if applicable) to request Health Insurance Portability and Accountability Act (HIPAA) special enrollment.
- The date within which individuals may file a benefit claim or an appeal of an adverse benefit determination under a plan’s claims procedures.
- The date within which claimants may file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination.
This article discusses how the affected tolled deadlines will be phased out and what actions employers may need to take.
EBSA Disaster Relief Notice 2020-01, later extended by EBSA Disaster Relief Notice 2021-01, provided that the deadline by which action needs to be taken for the events described above was tolled until the earlier of: (i) one year from the date the deadline would have first started running for that individual or (ii) sixty (60) days from the end of the NE (the Outbreak Period). This guidance created a tolling deadline specific to each affected individual. Where the individual has not reached the one-year anniversary of the date of the initial deadline, timeframes will begin to run again sixty (60) days after the end of the NE (i.e., July 10, 2023).
The FAQs released by the Departments at the end of March provided much-needed clarification and various helpful examples for employers of how the outbreak period should be taken into consideration when calculating the tolled deadlines. For example, if an employee experiences a qualifying event under COBRA and loses coverage on April 1, 2023, the deadline for the individual to make a COBRA election is tolled until the earlier of one year from the date they were first eligible to elect COBRA or 60 days following the end of the Outbreak Period. Assuming the NE ends on May 11, 2023, the deadline to make an election is now September 8, 2023 (i.e., 60 days following July 10, 2023). The deadline for a participant to request special enrollment in a group health plan due to the birth or adoption of a child, marriage, loss of health coverage or eligibility for state premium assistance subsidy will begin to run again 60 days after the end of the NE—which will presumably end July 10, 2023. Employees will have a 30-day period (or 60-day period, if applicable) from that date to request HIPAA special enrollment. The deadlines by which participants must file a claim for benefits and appeal an adverse benefit determination were also affected by this tolling, as were the deadlines for the federal or state external review process, which will also begin to run 60 days after the end of the NE.
The DOL has indicated that plan fiduciaries should make reasonable accommodations to prevent the loss of or undue delay of benefit payments. Plan sponsors should also take action to mitigate the possibility of individuals losing out on benefits because of their failure to comply with the affected timeframes. Plan sponsors might consider extending any upcoming deadlines to mitigate the impact on participants and beneficiaries during this transition. Plan administrators and fiduciaries are strongly encouraged to send notices to participants regarding their individual upcoming election and payment deadlines, as well as general changes to plan operations as a result of the end of the NE and PHE. Plan sponsors should consider reissuing prior disclosures made to participants about extension deadlines.
In general, plan sponsors need to revisit their plan documents, summary plan descriptions, notices, and policies and procedures to remove any outdated language related to the tolling of deadlines. After the Outbreak Period, health plans will revert to pre-COVID deadlines.
For any questions regarding the end of the PHE and/or NE, please contact your regular McDermott lawyer or one of the authors.