COVID-19: Extension of COBRA and ERISA Deadlines; New COBRA Model Notices

The Employee Benefits Security Administration, the Department of Labor, the Internal Revenue Service, and the Department of the Treasury (“the Agencies”) recently issued a joint notification of relief, extending COBRA and ERISA deadlines and election periods.

Specifically, all group health plans, disability, and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA must disregard or otherwise exclude the period from March 1, 2020 until 60 days after the COVID-19 National Emergency (declared by the President on March 13^th) ends or such other date that may be announced by the Agencies in a future notification (the ‘‘Outbreak Period’’) for all plan participants, beneficiaries, qualified beneficiaries, or claimants in determining the following periods and dates:

• The 30-day period (or 60-day period, if applicable) to request special enrollment in benefit plans under HIPAA (e.g., adding a child to the plan following birth), provided that premiums are paid for coverage.
• The 60-day election period for COBRA continuation coverage.
• The date for making COBRA premium payments.
• The date for individuals to notify the plan of a qualifying event or determination of disability.
• The date within which individuals may file a benefit claim under the plan’s claims procedure.
• The date within which claimants may file an 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 date within which a claimant may file information to perfect a request for external review upon a finding that the request was not complete

Generally, deadlines and timing requirements must exclude the Outbreak Period when calculating the above deadlines. For illustration purposes only, assuming the National Emergency ends on June 30, 2020, the Outbreak Period would end 60 days thereafter, on August 29, 2020. If a qualifying event that would initiate a timing deadline occurs during the Outbreak Period, the timing does not begin to run until after the Outbreak Period.

For example, a baby is born on March 20, 2020, and is eligible to be added to the parent’s health benefit plan. The baby may be added to the plan as of March 20^th and through September 28, 2020 (30 days after the end of the Outbreak Period). Similarly, if an employee’s benefits coverage is terminated on March 31, 2020 due to ineligibility because they aren’t working enough hours to qualify under the plan, the time period to elect COBRA coverage would be 60 days after the end of the Outbreak Period, extending their deadline to October 28, 2020 (60 days after the end of the Outbreak Period). If the National Emergency lasts for a longer period, qualifying events and deadlines would be extended even further. The Notice provides several examples for adjusting the timing requirements around the Outbreak Period under the above-listed circumstances.

These changes will make for a confusing experience for plan participants, and plan administrators will be required to properly administer these changes retroactively up to March 1, 2020. Additionally, revised COBRA model notices were recently issued to include a discussion of other coverage options (e.g., Medicare), but they do not currently appear to include adjustments for the Outbreak Period. Continue to look for updates on this topic.

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