Kirsten Stewart and Russ Johnson

IMPORTANT UPDATE:  When President Biden signed H.R. Res. 7, on April 10, 2023, the COVID-19 National Emergency officially ended immediately.  This means that the “Outbreak Period” described below may be ending earlier than July 10, 2023.  Informal remarks by the Department of Labor indicate that the deadlines described below may remain in effect, but we don’t have formal guidance at this time.  Please check back for more updates. 

On January 30, 2023, the Biden Administration released a Statement of Administration Policy providing that the Administration intends to end the COVID-19 National Emergency declared in 2020 (the “National Emergency”) on May 11, 2023. Ahead of this anticipated end to the National Emergency, plan sponsors should prepare to readjust plan administration to the pre-COVID-19 rules.

When the National Emergency was declared in 2020, the U.S. Departments of Labor, Treasury, and  Health and Human Services (the “Agencies”) issued guidance requiring group health plans, disability and other welfare plans, and employee pension benefit plans (including 401(k), defined benefit and 403(b) plans) subject to ERISA to disregard certain plan deadlines from March 1, 2020 to 60 days after the announced end of the National Emergency or other date announced by the Agencies in a future notice (subject to a maximum extension period for each individual of one year from his or her original deadline).  Accordingly, if the announced end of the National Emergency is May 11, 2023, these deadline extensions would expire on July 10, 2023.

As a reminder, the extension applied to all plan participants, beneficiaries, qualified beneficiaries, or claimants under impacted plans in determining deadlines for the following:

• The HIPAA special enrollment timeframes for allowing an individual to enroll in a group health plan;
• The 60-day election period for COBRA continuation coverage in a group health plan;
• The dates for making COBRA premium payments to a group health;
• The date for individuals to notify a group health plan of a qualifying event or determination of disability for purposes of COBRA;
• The date by which individuals may file a benefit claim under the plan’s claims procedures;
• The date by which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedures;
• The date by which claimants may file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination; and
• The date by which a claimant may file information to perfect a request for external review upon a finding that the request was not complete.

The Department of Health and Human Services also “encouraged” plan sponsors of non-ERISA state and local government plans to provide similar relief and encouraged states and health insurance issuers to enforce, and operate in a manner consistent with, this relief.

Plan sponsors should consider taking the following actions:

1. Keep an eye out for supplemental guidance issued by the Agencies, if any;
2. Confirm third-party administrators, including COBRA administrators, are prepared for the transition away from the deadline extensions;
3. Consider communications to participants and beneficiaries who will have their deadline extensions cut short by the reversion to the pre-COVID-19 rules; and
4. Prepare updates to summary plan descriptions and associated forms to ensure compliance with applicable law and to prevent confusion regarding deadlines.

If you have any questions or need any additional information, please reach out to an attorney in the Employee Benefits group for more information.