QUESTION: Due to the COVID-19 emergency, we understand that participants in our self-insured ERISA group health plan must be given more time for certain actions (such as submitting claims and appeals and enrolling due to a special enrollment event) and that our company—as plan administrator—has some leeway in furnishing certain notices and documents. Are those extensions still in effect? And how will we know when they end?
ANSWER: Various health plan related deadlines have been extended due to the COVID-19 emergency. Joint DOL and IRS guidance extends numerous deadlines by specifying that the “outbreak period” beginning March 1, 2020, and ending 60 days after the announced end of the COVID-19 “national emergency” is to be disregarded for specified purposes. (HHS concurs with this guidance, but see our Checkpoint article regarding its applicability to non-federal governmental plans.) This extension applies to HIPAA special enrollment periods (see our Checkpoint Question of the Week), multiple COBRA deadlines (see our Checkpoint article), and certain claims and appeals deadlines for participants (see our Checkpoint Question of the Week). In addition, group health plans and responsible plan fiduciaries will not be treated as having violated ERISA if they act in good faith and furnish any notices, disclosures, or documents that would otherwise have to be furnished during the outbreak period “as soon as administratively practicable under the circumstances.” The deadline for furnishing advance notice of modifications to the summary of benefits and coverage (SBC) has also been extended (see our Checkpoint Question of the Week).
The national emergency for this purpose refers to the President’s declaration of a national emergency as of March 1, 2020. Once an end date to the national emergency is announced, the outbreak period will end 60 days after that date unless, as permitted by the guidance, the agencies announce a different end date for purposes of these extensions. Other extensions, not defined with reference to the outbreak period or the national emergency date, have already expired, including extended periods for making HSA rollovers and the extended deadline for filing Form 5500 (see our Checkpoint article).
Keep in mind that for some COVID-19-related coverage mandates (for instance, mandated diagnostic tests), the applicability period is defined with reference to the public health emergency declared by HHS as of January 27, 2020 (see our Checkpoint article). HHS public health emergency declarations are generally effective for 90 days, but may be shortened or extended. The most recent HHS renewal, announced on October 2, 2020, is effective October 23, 2020 (see our Checkpoint article).
The bottom line is that different COVID-19-related guidance may have different end dates, and the timing is still in flux. You should keep an eye out for pronouncements about the end of the national emergency and the public health emergency, and for guidance that otherwise extends, terminates, or modifies deadline relief.
For more information, see EBIA’s Self-Insured Health Plans manual at Sections XVI (“Enrollment”), XXVI.E (“Timelines Under Group Health Plan Claims Procedures”), and XXVIII (“Participant Disclosure Requirements for Self-Insured Health Plans”). See also EBIA’s HIPAA Portability, Privacy & Security manual at Section X (“Special Enrollment Rights”); EBIA’s COBRA manual at Section VI (“Special Issues: COBRA and COVID-19”); EBIA’s ERISA Compliance manual at Sections XXIV.E (“When Must SPDs and SMMs Be Furnished?”) and XXXIV.F (“Timelines Under Group Health Claims Procedures”); and EBIA’s Health Care Reform manual at Sections XV (“Appeals Process and External Review Requirements”) and XVI.H (“Updating the SBC: Notice of Material Modifications”).
Contributing Editors: EBIA Staff.