Outbreak Period Extension Guidance at the 1-Year Mark

The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued Disaster Relief Notice 2021-01 to clarify how “outbreak period” extensions of certain health plan deadlines will work now that they’ve been in effect for a year.  As discussed briefly in our previous alert, the new guidance provides that once an individual experiences a certain protected deadline during the federally designated outbreak period, the original deadline is extended by one year (or until 60 days after the announced end of the national emergency, if earlier).  Since the national emergency has not been declared over, this gives individuals a rolling 1-year extension for an impacted deadline.

As a reminder, the impacted deadlines include HIPAA special enrollment rights, all COBRA notice, election, and payment deadlines, and ERISA timely filing of claims and appeals.  Here are some practical examples of how this new guidance will work:

• If someone’s original deadline had been 3/1/20, then their outbreak period ends 2/28/21 and the individual must take action by 3/1/21
• If someone’s original deadline had been 4/1/20, then their outbreak period ends 3/31/21 and the individual must take action by 4/1/21
• If someone’s original deadline had been 5/1/20, then their outbreak period ends 4/30/21 and the individual must take action by 5/1/21
• Fast forward to today, since the national emergency is still in effect, if someone’s original deadline is 4/1/21, then their outbreak period ends 3/31/22 (or 60 days after the announced end of the national emergency, if earlier), and the individual must take action by the next day after their outbreak period ends

Keep in mind the national emergency was declared by the President in March 2020, and the President would announce when it ends.  This is different from the public health emergency declared by the Department of Health and Human Services (HHS), which dictates how long health plans must cover COVID-19 tests and vaccines without cost sharing even when obtained out-of-network.

Employers are advised under this new guidance to communicate with affected individuals when their extended deadline is coming up.  IMA has prepared a sample communication an employer could use, just let your IMA Benefits team know if you’d like a copy.

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.