by Matt Gerard
on June 2, 2023
On May 11, 2023, the national emergency concerning the coronavirus disease 2019 (COVID-19) pandemic (“COVID-19 National Emergency”) and the COVID-19 Public Health Emergency ended. The end of the COVID-19 National Emergency signifies the end of the extension of certain timeframes for employee benefit plans subject to the Internal Revenue Code (the “Code”) and ERISA.
In 2020, the DOL, IRS, and HHS, issued a Joint Notice that requires group health plans, welfare plans, and pension plans subject to ERISA or the Code to disregard the period beginning March 1, 2020, and ending 60 days after the end of the COVID-19 National Emergency (the “Outbreak Period”) in determining the following timeframes:
Later in Disaster Relief Notice 2021-01, the Departments said that they only had the ability to toll deadlines for up to one year. Thus, the relief described in the earlier Joint Notice would end on the earlier of:
In anticipation of the COVID-19 National Emergency ending, the Departments issued joint FAQs about the impact of the end of the emergency on employee benefit plans. In the joint FAQs, the Departments state that the National Emergency will end on May 11, 2023, which means that the Outbreak Period will end 60 days later on July 10, 2023. However, nothing in the Code or ERISA prevents a group health plan from allowing for longer timeframes for employees, participants, or beneficiaries to complete these actions, and according to the joint FAQs issued by the DOL, HHS, and the US Treasury, the Departments encourage group health plans to do so. Despite President Biden ending the COVID-19 National Emergency on April 10, the Departments have not issued guidance to indicate that the outbreak period would end earlier than July 10. The joint FAQs provide several examples illustrating the how the disregarded period affects the above-listed timeframes.
Below are some examples to illustrate how the end of the COVID-19 National Emergency and the Outbreak Period operate in respect to some of the above-mentioned timelines.
Electing COBRA
| Example 1
Answer 1 |
Sarah works for Acme Inc. and participates in its group health plan. Sarah experiences a qualifying event for COBRA purposes and loses coverage on February 1, 2023. Sarah is eligible to elect COBRA coverage under Acme’s plan, and Acme provides Sarah with a COBRA election notice on March 1, 2023. What is the deadline for Sarah to elect COBRA?
The last day of Sarah’s COBRA election period is 60 days after July 10, 2023 (the end of the Outbreak Period), which is September 8, 2023. |
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| Example 2
Answer 2 |
Same scenario as is Example 1, except Sarah experiences the qualifying event and loss of coverage on April 11, 2023, and Acme provides Sarah with a COBRA election notice on May 11, 2023. What is the deadline for Sarah to elect COBRA?
Because the qualifying event occurred after the end of the COVID-19 National Emergency but during the Outbreak Period, the extensions under the emergency relief notices still applies. The last day of Sarah’s COBRA election period is 60 days after July 10, 2023 (the end of the Outbreak Period), which is September 8, 2023. |
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| Example 3
Answer 3 |
Same scenario as is Example 1, except Sarah experiences the qualifying event and loss of coverage on January 1, 2022, and Acme provides Sarah with a COBRA election notice on February 1, 2022. What is the deadline for Sarah to elect COBRA?
Because the qualifying event occurred before the end of the COVID-19 National Emergency, the extensions under the emergency relief notices do apply. The last day of Sarah’s COBRA election period is one year from April 2, 2022 (60 days from the date she received the COBRA election notice), which is April 2, 2023. |
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| Example 4
Answer 4
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Same scenario as is Example 1, except Sarah experiences the qualifying event and loss of coverage on June 10, 2023, and Acme provides Sarah with a COBRA election notice on July 11, 2023. What is the deadline for Sarah to elect COBRA?
Because the qualifying event occurred after the end of the COVID-19 National Emergency and Sarah received a COBRA election notice after the end of the Outbreak Period, the extensions under the emergency relief notices do not apply. The last day of Sarah’s COBRA election period is 60 days after July 11, 2023, which is September 9, 2023. |
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Paying COBRA Premiums
| Example 5
Answer 5 |
Jim works for Acme Inc. and participates in its group health plan. Jim experiences a qualifying event for COBRA purposes and receives a COBRA election notice on October 1, 2022. Jim elects COBRA continuation coverage on October 15, 2022, retroactive to October 1, 2022. When must Jim make the initial COBRA premium payment and subsequent monthly COBRA premium payments?
Jim has until 45 days after July 10, 2023 (the end of the 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 paid 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. |
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| Example 6
Answer 6 |
Mark elected COBRA continuation coverage in 2022 but stopped paying his COBRA premium payments in August of 2022. Mark normally would have had until August 31, 2022, to pay his August COBRA premium payment, but the August premium and subsequent premiums were subject to the extensions under the emergency relief notices. When must Mark make his August 2022 COBRA premium payment and subsequent monthly COBRA premium payments?
Mark has until 30 days after July 10, 2023 (the end of the Outbreak Period), which is August 9, 2023, to make his August 2022 COBRA premium payment. The COBRA premium payment would include all the monthly premium payments for August 2022 through July 2023. The premium payment for August 2023 must be paid 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. |
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| Example 7
Answer 7 |
Bill elected COBRA continuation coverage in September 2022, but has yet to pay a COBRA premium because of the extensions under the emergency relief notices. In December 2022, Bill undergoes surgery. Later in June 2023, Bill gets hired by Acme, Inc. and becomes covered under Acme’s group health plan. Bill wants to pay his COBRA premiums so that his surgery is covered by COBRA continuation coverage. What COBRA premiums must Bill pay and when must his pay them?
Bill has until 45 days after July 10, 2023 (the end of the Outbreak Period), which is August 24, 2023, to make his initial COBRA premium payment. The initial COBRA premium must include the monthly premium payments for September through December 2022 if Bill wants his surgery to be covered by COBRA continuation coverage. If Bill wanted COBRA continuation coverage after December, then his initial COBRA premium would also include the monthly premium payments for January through May 2023. |
HIPPA Special Enrollment Period
| Example 8
Answer 8 |
Cathy works for Acme, Inc. and is eligible for Acme’s group health plan. Cathy previously declines participation in Acme’s group health plan; however, on March 1, 2023, Cathy gave birth and would like to enroll herself and her child in Acme’s group health plan. But open enrollment does not begin until November 15, 2023. When may Cathy exercise her HIPAA special enrollment rights?
Cathy and her child qualify for special enrollment in Acme’s plan as early as the date of the child’s birth, March 1, 2023. Cathy may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the Outbreak Period), which is August 9, 2023, as long as she pays the premiums for the period of coverage after birth. |
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| Example 9
Answer 9 |
Same scenario as in Example 8, except that Cathy gives birth on May 12, 2023. When may Cathy exercise her HIPAA special enrollment rights?
Cathy and her child qualify for special enrollment in Acme’s plan as early as the date of the child’s birth, May 12, 2023. Because Cathy became eligible for special enrollment on May 12, 2023, after the end of the COVID-19 National Emergency but during the Outbreak Period, the extensions under the emergency relief notices still apply. Cathy may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the Outbreak Period), which is August 9, 2023, as long as she pays the premiums for the period of coverage after birth. |
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| Example 10
Answer 10 |
Same scenario as in Example 8, except that Cathy gives birth on July 12, 2023. When may Cathy exercise her HIPAA special enrollment rights?
Cathy and her child qualify for special enrollment in Acme’s plan as early as the date of the child’s birth, July 12, 2023. Because Cathy became eligible for special enrollment on July 12, 2023, after the end of both the COVID-19 National Emergency and the Outbreak Period, the extensions under the emergency relief notices do not apply. Cathy 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 birth. |
Plan sponsors and administrators should be aware of the effect that the expiration of the COVID-19 National Emergency will have on their benefit plans and consider whether to continue benefit plan deadline tolling. Additionally, plan sponsors and administrators will want to consider whether and how to timely communicate with participants about the end of the tolling period, even if they are not obligated to do so. As always, NBS stand ready to aid plan sponsors and administrators with the issues related to the expiration of the COVID-19 National Emergency.
