In late January of this year, the White House announced that it intended to end the pandemic-related National Emergency and the separate Public Health Emergency on May 11, 2023. We wrote about that previously here. However, Congress passed a resolution that ends the National Emergency immediately, and President Biden signed it Monday, April 10, 2023.
This change will mean employee benefit rules subject to the National Emergency will end a few weeks earlier than originally anticipated. The new legislation does not change the date for the end of the Public Health Emergency issued by the Department of Health and Human Service (HHS). HHS has not announced plans to change the end date for the Public Health Emergency from the previously declared May 11, 2023 date.
As a reminder, these two emergency declarations affect health plans in different ways:
- The National Emergency was first declared by President Trump on March 1, 2020, and has been renewed annually ever since. Subsequently, the Department of Labor (DOL), HHS, the Treasury Department (Treasury), and the Internal Revenue Service (IRS) issued a joint notice defining an “Outbreak Period,” which runs an additional 60 days after the end of the National Emergency. The joint notice Outbreak Period rules determine how long various benefits-related deadlines, such as COBRA notices, elections, and payments; HIPAA special enrollments; and ERISA claims and appeals deadlines, are extended.
- The Public Health Emergency was first declared by HHS in March of 2020, and has been renewed every three (3) months since. The Public Health Emergency, among other things, requires health plans to cover various COVID-related services, like vaccines, tests, and treatments, at no cost.
National Emergency Ending
As of Tuesday, April 11, 2023, the 60-day clock determining the end of the Outbreak Period will begin running. The Outbreak Period will officially end June 9, 2023. Any deadlines that were being disregarded during the Outbreak Period will resume June 10, 2023.
Impact on Joint Notice Deadlines
The DOL, HHS and Treasury also recently released FAQs clarifying how the end of the National Emergency will impact employee benefit related delayed deadlines. In short, for affected events that occurred less than 12 months before the end of the national emergency, participants will have their normal deadline imposed beginning the day after the Outbreak Period ends.
The Agencies do make a point that the timing of this is largely coinciding with “unwinding” of Medicaid and CHIP coverage. Given the volume of people affected, the Agencies offer the following comment in bold type: “Nothing in the Code or ERISA prevents a group health plan from allowing for a longer special enrollment period (i.e., a period that extends beyond the minimum 60-day statutory requirement) for employees, participants, or beneficiaries to complete these actions, and employers and group health plans are encouraged to do so.” However, they are not giving any special permission to allow retroactive coverage when Medicaid/CHIP coverage is lost. The usual rules apply where coverage is effective the date they submit an election (or the first of the month after they submit an election if the employer typically has coverage begin the first of the month). As a reminder, only birth, adoption, or placement with the employee for adoption would have coverage begin retroactively before the date they submit an election.
The FAQs provide examples of how the end of the Outbreak Period works, but they had used May 11 as the end date for the national emergency. Below we will show those FAQ examples but using April 10 as the last day of the national emergency and using June 9 as the end of the Outbreak Period 60 days later. Deadlines will resume tolling starting June 10.
|Event||Example Dates||# Days Usually Allowed||# Outbreak Period Days Disregarded||# Days Remaining 6/10/23||Deadline|
|Electing COBRA||4/1/23 coverage loss
|60 days to elect||40 days disregarded
5/1/23 – 6/9/23
|Electing COBRA||5/12/23 coverage loss
|60 days to elect||24 days disregarded
5/15/23 – 6/9/23
|Electing COBRA||7/12/23 coverage loss
|60 days to elect||No days disregarded||N/A (event is after Outbreak Period)||9/13/23|
|Paying for COBRA||10/1/22 coverage loss and notice
|· 45 days to make initial payment
· 30 days to make monthly payments (+30 days grace period)
|252 days disregarded
10/1/22 – 6/9/23
|45 days for Oct 2022 through June 2023 premiums||7/24/23 initial payment
7/30/23 for July 2023 payment (7/1 + 30 days grace period)
|HIPAA Special Enrollment||4/1/23 birth||30 days to elect||70 days
4/1/23 – 6/9/23
|30 days||7/9/23 to elect and pay premium retro to 4/1/23|
|HIPAA Special Enrollment||5/12/23 birth||30 days to elect||27 days disregarded
5/12/23 – 6/9/23
|30 days||7/9/23 to elect and pay premium retro to 5/12/23|
|HIPAA Special Enrollment||7/12/23 birth||30 days to elect||No days disregarded||N/A (event is after Outbreak Period)||8/11/23 to elect and pay premium retro to 7/12/23|
Stay tuned for additional guidance and details on National Emergency-related benefit changes. Employers must also understand that issues related to the Public Health Emergency are still subject to change effective with the original May 11, 2023 deadline announced by the Biden Administration unless HHS changes that timeframe.
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