April 12, 2023

Normal Timelines Under Employee Benefit Plans Will Resume After the COVID-19 National Emergency Ends

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Earlier this year, the Biden Administration announced its intention to end the COVID-19 National Emergency (and the related nationwide Public Health Emergency) at the end of the day on May 11, 2023. On March 29, 2023, the U.S. Senate approved a Joint Resolution that if signed by the President before May 11, 2023, and if effective upon signature, would end the COVID-19 National Emergency sooner than May 11, 2023. The Joint Resolution did not also accelerate the end of the nationwide Public Health Emergency, which means that group health plans may have to deal with two different timetables, one timetable for resuming normal operations that are associated with the end of the COVID-19 National Emergency (e.g., resuming the normal HIPAA, COBRA and ERISA-related deadlines that are discussed in this news alert) and another timetable for resuming normal operations that are associated with the end of the nationwide Public Health Emergency (e.g., resuming cost-sharing, such as deductibles, co-pays or coinsurance, for COVID-19 diagnostic testing and related services).

In 2020 and 2021, the Internal Revenue Service and the Department of Labor issued guidance requiring all group health, disability and other employee welfare benefit plans, and all retirement plans, subject to ERISA or the Internal Revenue Code to toll (freeze) certain HIPAA, COBRA and ERISA-related timelines until the earlier of (1) one year from the date the timeline otherwise would have expired, or (2) 60 days after the announced end of the COVID-19 National Emergency. If we assume, for now at least, that May 11, 2023 will be the end-date of the COVID-19 National Emergency, then 60 days thereafter would be July 10, 2023, the assumed end-date of the COVID-19 Outbreak Period which began on March 1, 2020.

If we assume that tolling of normal timelines will end on July 10, 2023, then the following HIPAA, COBRA and ERISA-related timelines will resume on July 11, 2023:

HIPAA Special Enrollment Deadlines. The 30-day period (or 60-day period, if applicable) to request special enrollment under a HIPAA-subject group health plan.
COBRA Deadlines. The following deadlines for COBRA-subject group health plans:
- The 60-day period for electing COBRA continuation coverage;
- The 45-day period within which to make the initial COBRA premium payment, and the 30-day period within which to make each subsequent COBRA premium payment;
- The 60-day period within which individuals must notify the plan of a COBRA qualifying event or a determination of disability; and
- The deadline (generally 44 days after the COBRA qualifying event) by which the plan administrator must provide COBRA election notices.
ERISA Deadlines. The following deadlines for ERISA-subject employee welfare benefit and retirement plans:
- The deadline for filing a claim for benefits under the plan’s claims procedure;
- The deadline for filing an appeal of an adverse benefit determination under the plan’s claims procedure;
- The deadline to file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination; and
- The deadline to file information to perfect a request for external review upon a finding that the request was not complete.

On March 29, 2023, the Departments of Labor, Health and Human Services, and the Treasury jointly issued a set of Frequently Asked Questions (FAQs), which include, among other guidance, the following useful examples to help stakeholders understand how certain of the above-listed timelines would be applied if they were to resume on July 11, 2023:

Example 1 (Electing COBRA).

Facts: Individual A works for Employer X and participates in Employer X’s group health plan. Individual A experiences a qualifying event for COBRA purposes and loses coverage on April 1, 2023. Individual A is eligible to elect COBRA coverage under Employer X’s plan and is provided a COBRA election notice on May 1, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion: The last day of Individual A’s COBRA election period is 60 days after July 10, 2023 (the end of the COVID-19 Outbreak Period), which is September 8, 2023.

Example 2 (Electing COBRA).

Facts: Same facts as Example 1, except the qualifying event and loss of coverage occur on May 12, 2023, and Individual A is eligible to elect COBRA coverage under Employer X’s plan and is provided a COBRA election notice on May 15, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion: Because the qualifying event occurred on May 12, 2023, after the end of the COVID-19 National Emergency but during the COVID-19 Outbreak Period, the extensions under the emergency relief notices still apply. The last day of Individual A’s COBRA election period is 60 days after July 10, 2023 (the end of the COVID-19 Outbreak Period), which is September 8, 2023.

Example 3 (Electing COBRA).

Facts: Same facts as Example 1, except the qualifying event and loss of coverage occur on July 12, 2023, and Individual A is eligible to elect COBRA coverage under Employer X’s plan and is provided a COBRA election notice on July 15, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion: Because the qualifying event occurred on July 12, 2023, after the end of both the COVID-19 National Emergency and the COVID-19 Outbreak Period, the extensions under the emergency relief notices do not apply. The last day of Individual A’s COBRA election period is 60 days after July 15, 2023, which is September 13, 2023.

Example 4 (Paying COBRA Premiums).

Facts: Individual B participates in Employer Y’s group health plan. Individual B has a qualifying event and receives a COBRA election notice on October 1, 2022. Individual B elects COBRA continuation coverage on October 15, 2022, retroactive to October 1, 2022.

When must Individual B make the initial COBRA premium payment and subsequent monthly COBRA premium payments?

Conclusion: Individual B has until 45 days after July 10, 2023 (the end of the COVID-19 Outbreak Period), which is August 24, 2023, to make the initial COBRA premium payment. The initial COBRA premium payment would include the monthly premium payments for October 2022 through July 2023. The premium payment for August 2023 must be made by August 30, 2023 (the last day of the 30-day grace period for the August 2023 premium payment). Subsequent monthly COBRA premium payments would be due the first of each month, subject to a 30-day grace period.

Example 5 (HIPAA Special Enrollment Period).

Facts: Individual C works for Employer Z. Individual C is eligible for Employer Z’s group health plan, but previously declined participation. On April 1, 2023, Individual C gave birth and would like to enroll herself and the child in Employer Z’s plan. However, open enrollment does not begin until November 15, 2023.

When may Individual C exercise her special enrollment rights?

Conclusion: Individual C and her child qualify for special enrollment in Employer Z’s plan as early as the date of the child’s birth, April 1, 2023. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the COVID-19 Outbreak Period), which is August 9, 2023, as long as she pays the premiums for the period of coverage after the birth.

Example 6 (HIPAA Special Enrollment Period).

Facts: Same facts as Example 5, except that Individual C gave birth on May 12, 2023.

When may Individual C exercise her special enrollment rights?

Conclusion: Individual C and her child qualify for special enrollment in Employer Z’s plan as of the date of the child’s birth, May 12, 2023. Because Individual C became eligible for special enrollment on May 12, 2023, after the end of the COVID-19 National Emergency but during the COVID-19 Outbreak Period, the extensions under the emergency relief notices still apply. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the COVID-19 Outbreak Period), which is August 9, 2023, as long as she pays the premiums for the period of coverage after the birth.

Example 7 (HIPAA Special Enrollment Period).

Facts: Same facts as Example 5, except that Individual C gave birth on July 12, 2023.

When may Individual C exercise her special enrollment rights?

Conclusion: Individual C and her child qualify for special enrollment in Employer Z’s plan as of the date of the child’s birth, July 12, 2023. Because Individual C became eligible for special enrollment on July 12, 2023, after the end of both the COVID-19 National Emergency and the COVID-19 Outbreak Period, the extensions under the emergency relief notices do not apply. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 12, 2023, which is August 11, 2023, as long as she pays the premiums for the period of coverage after the birth.

The FAQs also cover how the end of the nationwide Public Health Emergency will change coverage requirements under group health plans. In addition, on April 6, 2023, the Department of Labor posted two blogs on what the end of the COVID-19 Public Health Emergency means for health benefits and important changes to health coverage once the Public Health Emergency ends.

Action Steps for Employers, Given the Resumption of Normal Timelines after the COVID-19 National Emergency Ends

Given the impending end of the COVID-19 National Emergency and the resulting resumption of normal HIPAA, COBRA and ERISA-related timelines, plan sponsors of group health, disability and other employee welfare benefit plans, and all retirement plans, subject to ERISA or the Internal Revenue Code, should consider taking the following steps:

Review all plan documents, and if they previously had been amended to reflect tolling of the normal HIPAA, COBRA and ERISA-related timetables due to the COVID-19 National Emergency, then amend the plan documents to remove those timetables once the COVID-19 National Emergency Period ends.
Review all summary plan descriptions (SPDs), enrollment materials, COBRA notices, and other relevant materials, and if necessary, remove any existing references to the tolling of deadlines during the COVID-19 National Emergency.
Notify plan participants about how they could be affected by the end of the COVID-19 National Emergency and the resulting resumption of normal HIPAA, COBRA and ERISA-related deadlines.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.