QUESTION: We understand that the time periods applicable to certain plan notices and disclosures under our group health plan have been extended due to the COVID-19 emergency. What notices and disclosures are subject to relief, and how long is the extension?
ANSWER: Federal agencies have offered relief from the regular timeframes for furnishing a variety of required group health plan notices and disclosures during the COVID-19 emergency. Here are highlights:
ERISA-Required Notices. For any ERISA notices, disclosures, or documents that would otherwise have to be furnished during the “outbreak period” beginning March 1, 2020, and ending 60 days after the announced end of the COVID-19 emergency, plans and responsible plan fiduciaries will not be treated as having violated ERISA if they act in good faith and furnish the item “as soon as administratively practicable under the circumstances.” This includes documents requested by participants in writing. (See our Checkpoint article.)
Summary of Benefits and Coverage (SBC). Plans or insurers may adopt modifications to provide greater coverage for COVID-19 diagnosis or treatment without providing the normally required minimum 60-day advance notice for material modifications affecting the SBC, so long as notice of the changes is provided as soon as reasonably practicable (see our Checkpoint article). Further, if a plan or insurer reverses plan modifications once the COVID-19 emergency ends, it will be considered to have satisfied its obligation to provide advance notice of a material modification if it previously notified participants, beneficiaries, and enrollees of the general duration of the modifications, or it notifies them within a reasonable time in advance of the reversal of the changes (see our Checkpoint article).
ICHRA Notices. The individual coverage health reimbursement arrangement (ICHRA) notice required at least 90 days before the start of the plan year is generally subject to the ERISA notice relief—i.e., notices that would otherwise be required to be furnished during the outbreak period may be furnished as soon as administratively practicable under the circumstances. Employers considering offering an ICHRA for the first time are encouraged to consider whether they can provide the ICHRA notice far enough in advance so that eligible employees have sufficient time to make informed decisions and timely take necessary actions (see our Checkpoint article).
For more information, see EBIA’s ERISA Compliance manual at Sections XXIV.E (“When Must SPDs and SMMs Be Furnished?”), XXIV.O (“Summary of Benefits and Coverage (SBC) Under Health Care Reform”), and XXV.A (“Participant and Beneficiary Right to Request and Examine Documents”). See also EBIA’s Self-Insured Health Plans manual at Section XXVIII (“Participant Disclosure Requirements for Self-Insured Health Plans”), EBIA’s Health Care Reform manual at Section XVI.H (“Updating the SBC: Notice of Material Modifications”), and EBIA’s Consumer-Driven Health Care manual at Section XXVIII.B (“Individual Coverage HRAs (ICHRAs)”).
Contributing Editors: EBIA Staff.