What the End of the COVID-19 Pandemic Means for Employee Benefit Plan Deadlines and Coverage
President Biden announced that the COVID-19 Public Health Emergency (PHE) and the National Emergency declared by President Trump in 2020 will end on May 11, 2023. The PHE relief issued in response to the pandemic affected group health plan coverage requirements related to COVID-19 prevention and treatment. The National Emergency relief suspended deadlines that normally apply to certain employee benefit plans. While seemingly simple in concept, the end of the PHE and National Emergency means employers soon will enter a murky transition period requiring special administrative attention.
Calculating Deadlines After the National Emergency
The U.S. Department of Labor and the Department of the Treasury jointly issued deadline extension relief applicable to ERISA deadlines that normally apply to HIPAA special enrollment events, claims, appeals, COBRA elections, and COBRA premium payments, among others (the “Relief Events”). The guidance included a transition rule such that once the National Emergency ends, the relief draws to a close.
Specifically, under the relief, the normal deadlines for the Relief Events are suspended until the earlier of: (1) one year from the date the individual first qualifies for the relief; or (2) 60 days after the end of the National Emergency – which would be July 10, 2023, if the National Emergency ends on May 11, 2023. Special rules apply for COBRA elections and premium payments, so employees do not benefit from stacked deadline relief.
Practically, this means the calculation of normal deadlines will resume on July 10, 2023, for individuals whose Relief Event date was after July 10, 2022. We estimate this date was selected to follow the week when many take vacations to celebrate the 4th of July.
Preparing for the End of the PHE and the National Emergency
Employers rely on third-party vendors to administer many of the Relief Events. Rarely are employers directly involved in administering claims, appeals, or requests for external reviews. Further, many employers outsource COBRA administration. In these cases, employers should contact their third-party administrators, insurers, or vendors to confirm they are prepared for the end of the deadline relief and understand what administration during this transition period will entail.
For employers who administer some or all of the COBRA functions in-house, now is the time to update notices to specify election periods and COBRA premium payment deadlines. Clearly communicating the applicable election and premium payment deadlines will be key in mitigating COBRA litigation risk and compliance issues.
Employers would also be well served to review COBRA notices previously issued to determine if an updated notice or communication is merited in light of the impending end of the relief. With COBRA notice litigation still swirling, time spent to clearly and accurately communicate applicable deadlines for elections and premium payment obligations will mitigate the risk of claims from disgruntled participants (or their lawyers) insisting that coverage should remain in effect. Depending upon the circumstances, providing an updated notice to individuals informing them of the exact deadline that applies to them may be a worthwhile time and expense-saving measure.
Employers are also often involved with mid-year election change requests. The deadline relief does not apply to all qualified status change events specified in Code Section 125 guidance – it only applies to special enrollment events under HIPAA.
As the relief period draws to a close, employers need to be mindful of the transition period when calculating enrollment deadlines. It may be helpful to broadly and proactively communicate the end of the deadline relief on benefit websites and portals.
Communicating Coverage Changes
When the PHE ends on May 11, 2023, the requirement that group health plans provide COVID-19 testing, testing-related services, and vaccinations without cost sharing, among other coverage requirements, will also end. Employers should contact their insurers and third-party administrators regarding any needed amendments to their group health plans and the plan to communicate these changes to plan participants.
There are a number of moving targets that require close attention to individual deadlines on a participant-by-participant basis. Employers should take steps now to discuss compliance strategies, including clear communications and implementing processes, with their vendors.