Are Outbreak Period Extensions Over?

Update Friday, February 26, 2021: We now have guidance via EBSA Disaster Relief Notice 2021-01 that Outbreak Period extensions will continue until the earlier of:

• 1 year from the date the individual was first eligible for relief, or
• 60 days after the announced end of the National Emergency

We’ll publish a more detailed alert soon, but this effectively means each person will be given up to 1 year of an Outbreak Period extension on an individual circumstance basis, and since an end to the National Emergency has not been announced, this relief will continue to be available per individual circumstance.  Here are some examples:

• Someone with a COBRA election deadline of March 1, 2020 (the start of the Outbreak Period extension), would have until 1 year later on February 28, 2021, to submit their election
• Someone with a COBRA election deadline of April 1, 2020, would have until 1 year later on March 31, 2021, to submit their election
• Someone with a COBRA election deadline of May 1, 2021, would have until 1 year later on April 30, 2022, to submit their election (or until 60 days after the announced end of the National Emergency, if sooner)

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The May 4, 2020, guidance which announced Outbreak Period extensions for several benefit plan deadlines as of March 1, 2020, may be coming to a close one year later on February 28, 2021. IMA’s previous articles reviewed the deadlines which have been on pause since March 1, 2020, but a brief recap is below:

• 30-day HIPAA special enrollment rights for marriage, birth, adoption, placement for adoption, or losing eligibility for other coverage
• 60-day HIPAA special enrollment rights for losing eligibility for Medicaid/CHIP coverage or newly qualifying for Medicaid/CHIP premium subsidies
• COBRA notice and payment deadlines for qualified beneficiaries
  • 60 days to notify the employer of a COBRA triggering event like divorce
  • 60 days to submit a COBRA election
  • 45 days to remit first premium payment
  • 30 days grace period for each missed premium payment
  • 60 days from receipt of a letter of determination of Social Security disability to submit such letter in order to qualify for an 11-month COBRA extension
• COBRA notice deadlines for employers
• ERISA timely claim filing deadlines
• ERISA claim appeal and external review deadlines

The intent was for the Outbreak Period to delay these deadlines until 60 days after the President’s announced end of the national emergency, “subject to the statutory duration limitation in ERISA section 518 and Code section 7508A” (which say such extensions may be “a period of up to one year“), followed by a statement that “the Agencies will continue to monitor the effects of the Outbreak and may provide additional relief as warranted.”

We have heard the Agencies are in active discussions on this topic since the President has not announced an end date for the national emergency, but they have yet to publish any additional guidance on this issue.  Without their active intervention, it would appear the Outbreak Period extensions come to a close Sunday, February 28, 2021, without a 60-day heads-up period.

Unless regulators announce additional guidance by Friday, February 26, 2021, it would be wise for employers to consider postmarking the following communications as soon as possible:

• Any delinquent COBRA notices unable to be sent before now
• Letter explaining to affected qualified beneficiaries that their remaining notification, election, and/or premium payment days will resume tolling on March 1, 2021 (unless the Outbreak Period is extended)
• Letter communicating with all employees and COBRA qualified beneficiaries that HIPAA special enrollment deadlines, ERISA claim and appeal deadlines, and deadlines to notify the employer of divorce will resume tolling on March 1, 2021 (unless the Outbreak Period is extended)

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.