Temporary Relief Due to Outbreak Period May be Coming to an End

The National Emergency and whether it will or won’t come to an end in 2023 is on the mind of many health plan Sponsors and Administrators. The COVID-19 Public Health Emergency (PHE) is extended through January 11, 2023, and the National Health Emergency (NE) is set to expire March 1, 2023. Recall that these allow for government special, temporary, and extended time frames until 60 days after the end of the National Emergency and include:

• The deadline to request enrollment in a group health plan due to a HIPAA Special Enrollment event;
• The deadline in which claimants may file a claim for benefits or appeal of an adverse benefit determination under the plan's claims procedure;
• The date within which claimants may file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination;
• The deadline in which a claimant may file information to perfect a request for external review
• The 60-day deadline to elect COBRA continuation coverage;
• The deadlines for making COBRA premium payments; and
• The deadline for notification of a COBRA qualifying event and Disability extension.

In response to the COVID – 19 outbreak, the U.S. government first enacted a National Public Health Emergency in March of 2020. The Department of Labor (DOL) and the IRS issued a joint notice titled Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak, (the “Joint Notice”). Intended to last only a year, it has been extended multiple times. This continues to provide challenges and additional costs to Plan Administrators to extend deadlines for a one-year “tolling” period specific to an individual plan participant and the specific qualifying event. In applying these time frames, the period runs until sixty (60) days after the announced end of the National Emergency (the “Outbreak Period”). 

The IRS and the DOL may together announce the end of the Outbreak Period. Though a new extension could be forthcoming. President Biden must declare the National Health Emergency to be over with 60 days’ notice prior to the expiration. There is some opinion within the industry that because the PHE was extended in October 2022, for another 90 days, the president’s declaration will not be issued by the end of 2022 which will perceivably extend the tolling period beyond March 2023, and possibly for another plan year. Health business units should be aware of extensions to the relief provided under the IRS/DOL Joint Notice and evaluate implications of continuing coverage into 2023. 

In anticipation of the COVID-19 PHE and NE ending sometime in 2023, health businesses need to review group health plan terms for COVID-19 related coverage, including testing, vaccines and treatment, and review benefit terms or offerings made under temporary COVID-19 relief laws and guidance. It is prudent to confirm proper winding down of extended deadlines for claims and appeals, special enrollment under HIPAA and continuation coverage elections and payments under COBRA for when agency relief does expire. Employers should review federal, state, and local COVID-19 guidance on employee health and safety, leave, and workplace nondiscrimination, and review related policies as many of these requirements expire. Additionally, it will be necessary to monitor federal legislation that could extend COVID-19 testing requirements or telehealth flexibilities.

Though the direction is unclear and impossible to predict, the extension of these time frames under ERISA § 518 and Code § 7508A is still ongoing for an individual participating in an FSA/HRA who experiences a qualifying event on a plan year in 2022. Ascensus Health & Benefits continues to monitor indicators as to what the Federal government will prioritize before the end of 2022 and will issue timely updates if necessary. 

The regulations are available at:

https://www.govinfo.gov/content/pkg/FR-2020-05-04/pdf/2020-09399.pdf.