FAQs Anticipate End of COVID-19 National Emergency, Address Outbreak Period Extensions for COBRA and HIPAA Special Enrollment

The DOL, HHS, and IRS have jointly issued FAQs addressing how group health plans and insurers will be impacted by the end of the COVID-19 national emergency (NE) and public health emergency (PHE). This article highlights FAQs addressing the end of the NE, as well as special enrollment issues relating to loss of eligibility for Medicaid and Children’s Health Insurance Program (CHIP) coverage. FAQs addressing the end of the PHE are covered separately (see our Checkpoint article).

During the COVID-19 emergency, various plan-related deadlines were extended by disregarding (for a maximum of one year) the “outbreak period,” which will end 60 days after the end of the NE unless another end date is announced by the agencies (see our Checkpoint article). Based on the Biden administration’s announcement that the NE and PHE will end on May 11, 2023 (see our Checkpoint article), the agencies anticipate that the outbreak period will end July 10, 2023, although Congress has since voted to end the NE sooner, which could result in an earlier end to the outbreak period. After the end of the outbreak period, extensions will no longer be required, but the agencies encourage group health plans to allow for longer timeframes, noting that nothing in the Code or ERISA prevents this.

Examples illustrate how the outbreak period’s end (assumed to be July 10, 2023) affects COBRA elections and premium payments and HIPAA special enrollment deadlines:

• Electing COBRA. If a participant experiences a qualifying event and is provided a COBRA election notice before the end of the outbreak period, the individual’s 60-day period to elect COBRA begins to run on July 10, 2023 (making the deadline September 8, 2023)—regardless of whether the qualifying event, loss of coverage, or provision of the COBRA notice occurs before or after the end of the NE. If the qualifying event occurs after the end of the outbreak period, there is no extension, and the 60-day period is measured from the date the COBRA election notice is provided. [EBIA Comment: Although not expressly addressed in the FAQs, it appears that if a qualifying event occurs before the end of the outbreak period and the COBRA election notice is provided after the end of the outbreak period, the COBRA election deadline would be measured from provision of the notice.]
• Paying COBRA Premiums. The FAQs provide an example of a COBRA election made on October 15, 2022, retroactive to October 1, 2022. The initial COBRA payment, covering premiums from October 2022 through July 2023, must be made no later than 45 days after the end of the outbreak period (i.e., August 24, 2023), with subsequent payments due according to the regular COBRA timeline (the first day of each month of coverage, with a 30-day grace period).
• HIPAA Special Enrollment. For events giving rise to HIPAA special enrollment rights that occur before the end of the outbreak period, the applicable special enrollment period begins to run on July 10, 2023. In the examples, an individual who gives birth to a child before the end of the outbreak period has until August 9, 2023 (30 days after the end of the outbreak period) to exercise special enrollment rights, regardless of whether the birth occurred before or after the end of the NE. An individual who gives birth after the end of the outbreak period has 30 days after the date of the birth to exercise special enrollment rights.

The FAQs also explain that state agencies generally have not terminated individuals’ Medicaid or CHIP coverage during the last three years, but that program eligibility determinations will resume after this “continuous enrollment condition” ends on March 31, 2023. Employees who are eligible for special enrollment in an employer plan due to losing Medicaid or CHIP coverage from March 31, 2023, through the end of the outbreak period have until 60 days after the end of the outbreak period to request plan enrollment. The agencies encourage group health plans to allow a longer special enrollment period, and suggest that employers ensure that their benefits staff are aware of the Medicaid and CHIP eligibility change. A DOL blog post highlights these issues, reiterates the suggestion to extend plan deadlines, and recommends that employers communicate key deadlines to affected individuals in advance.

EBIA Comment: The FAQs leave some open questions—notably, no examples address how the outbreak period’s end will affect extended deadlines for filing benefit claims, appeals, and requests for external review; express guidance would be welcomed. Meanwhile, plan sponsors, administrators, and service providers should familiarize themselves with the FAQs in preparation for the end of the NE and PHE. For more information, see EBIA’s COBRA manual at Section VI.D (“COVID-19: COBRA Election and Premium Payment Deadlines”), EBIA’s HIPAA Portability, Privacy & Security manual at Section X (“Special Enrollment Rights”), and EBIA’s Self-Insured Health Plans manual at Sections XVI.C.4 (“Special Enrollment Periods Required Under HIPAA”) and XXVI.E (“Timelines Under Group Health Plan Claims Procedures”).

Contributing Editors: EBIA Staff.