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April 25, 2023

New Guidance Issued by the Federal Government with respect to Extended Deadlines for COBRA, Special Enrollment, and Healthcare Claim Filings and Appeals

The Federal Government previously declared a National Emergency concerning the COVID-19 outbreak, effective March 1, 2020.  The period of time from March 1, 2020 until 60 days after the end of the National Emergency is referred to as the “Outbreak Period” by the Federal Government.  Pursuant to the Government declaration, the Government suspended the following timeframes for plan members during the Outbreak Period:

  • The 30-day period (or 60-day period, if applicable) to request HIPAA special enrollment.
  • The 60-day election period for COBRA continuation coverage.
  • The 45-day period in which to make a first premium payment and 30-day deadline for subsequent premium payments.
  • The 60-day period for qualified beneficiaries to notify the plan of certain COBRA qualifying events (g., divorce, aging out of child dependent status, death of employee) or a determination of disability.
  • The deadlines for plan members to file claims for benefits, and to appeal adverse benefit determinations.
  • The four-month deadline for plan members of non-grandfathered group health plans to file requests for external review. (These group health plans must allow four months after the receipt of a notice of a final adverse benefit determination in which to request an external review.) Other deadlines that apply for perfecting an incomplete request for review were also extended.

The Federal Government has declared that the National Emergency will now end May 11, 2023.  Accordingly, the Outbreak Period will come to an end universally on July 10, 2023 (60 days after the end of the National Emergency).

The suspension for the above-referenced timeframes will last until the earlier of:

  1. One (1) year from the date that any applicable time period would have otherwise begun running for the particular plan member, or;
  2. 60-days from the end of the National Emergency (e.g. the Outbreak Period) on July 10, 2023.

Below are examples to illustrate the above rules:

Example 1 (Electing COBRA)

Facts: Individual A works for Employer X and participates in Employer X’s group health plan. Individual A experiences a qualifying event for COBRA purposes and loses coverage on April 1, 2023. Individual A is eligible to elect COBRA coverage under Employer X’s plan and is provided a COBRA election notice on May 1, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion: The last day of Individual A’s COBRA election period is 60 days after July 10, 2023 (the end of the Outbreak Period), which is September 8, 2023.

Example 2 (Electing COBRA)

Facts: Same facts as Example 1, except the qualifying event and loss of coverage occur on May 12, 2023, and Individual A is eligible to elect COBRA coverage under Employer X’s plan and is provided a COBRA election notice on May 15, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion: Because the qualifying event occurred on May 12, 2023, after the end of the COVID-19 National Emergency but during the Outbreak Period, the deadline extension still applies. The last day of Individual A’s COBRA election period is 60 days after July 10, 2023 (the end of the Outbreak Period), which is September 8, 2023.

Example 3 (Electing COBRA)

Facts: Same facts as Example 1, except the qualifying event and loss of coverage occur on July 12, 2023, and Individual A is eligible to elect COBRA coverage under Employer X’s plan and is provided a COBRA election notice on July 15, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion: Because the qualifying event occurred on July 12, 2023, after the end of both the COVID-19 National Emergency and the Outbreak Period, the deadline extension does not apply. The last day of Individual A’s COBRA election period is 60 days after July 15, 2023, which is September 13, 2023.

Example 4 (Paying COBRA Premiums)

Facts: Individual B participates in Employer Y’s group health plan. Individual B has a qualifying event and receives a COBRA election notice on October 1, 2022. Individual B elects COBRA continuation coverage on October 15, 2022, retroactive to October 1, 2022.

When must Individual B make the initial COBRA premium payment and subsequent monthly COBRA premium payments?

Conclusion: Individual B has until 45 days after July 10, 2023 (the end of the Outbreak Period), which is August 24, 2023, to make the initial COBRA premium payment. The initial COBRA premium payment would include the monthly premium payments for October 2022 through July 2023. The premium payment for August 2023 must be paid by August 30, 2023 (the last day of the 30-day grace period for the August 2023 premium payment). Subsequent monthly COBRA premium payments would be due the first of each month, subject to a 30-day grace period.

Example 5 (Special Enrollment Period)

Facts: Individual C works for Employer Z. Individual C is eligible for Employer Z’s group health plan, but previously declined participation. On April 1, 2023, Individual C gave birth and would like to enroll herself and the child in Employer Z’s plan. However, open enrollment does not begin until November 15, 2023.

When may Individual C exercise her special enrollment rights?

Conclusion: Individual C and her child qualify for special enrollment in Employer Z’s plan as early as the date of the child’s birth, April 1, 2023. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the Outbreak Period), which is August 9, 2023, as long as she pays the premiums for the period of coverage after the birth.

Example 6 (Special Enrollment Period)

Facts: Same facts as Example 5, except that Individual C gave birth on May 12, 2023.

When may Individual C exercise her special enrollment rights?

Conclusion: Individual C and her child qualify for special enrollment in Employer Z’s plan as of the date of the child’s birth, May 12, 2023. Because Individual C became eligible for special enrollment on May 12, 2023, after the end of the COVID-19 National Emergency but during the Outbreak Period, the deadline extension still applies. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the Outbreak Period), which is August 9, 2023, as long as she pays the premiums for the period of coverage after the birth.

Example 7 (Special Enrollment Period)

Facts: Same facts as Example 5, except that Individual C gave birth on July 12, 2023.

When may Individual C exercise her special enrollment rights?

Conclusion: Individual C and her child qualify for special enrollment in Employer Z’s plan as of the date of the child’s birth, July 12, 2023. Because Individual C became eligible for special enrollment on July 12, 2023, after the end of both the COVID-19 National Emergency and the Outbreak Period, the deadline extension does not apply. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 12, 2023, which is August 11, 2023, as long as she pays the premiums for the period of coverage after the birth.

Example 8 (Submitting a Claim)

Facts: Individual D’s claim was incurred on May 1, 2022.  Individual D has one year to file his/her claim with his/her group health plan, pursuant to the terms of Individual D’s Summary Plan Description.  

What is the deadline for Individual D to file his/her claim incurred on May 1, 2022?

Conclusion: Individual D’s one-year time frame to submit his/her claim was suspended due to the Outbreak Period until the earlier of (i) one year from May 1, 2022 or (ii) July 10, 2023. Since May 1, 2023 is earlier than July 10, 2023, the one year period for filing a claim resumes on May 1, 2023.  Accordingly, Individual D has until May 1, 2024, to file his/her claim with the group health plan (The July 10, 2023 universal end to the Outbreak Period has no impact on Individual D’s claim filing deadline because Individual D already received the full benefit of the one-year suspension prior to July 10, 2023.)

Example 9 (Appealing an Adverse Benefit Determination)

Facts: Individual E received an adverse benefit determination on August 1, 2022.  Individual E has 180 days to appeal the adverse benefit determination, pursuant to the terms of Individual E’s Summary Plan Description.

What is the deadline for Individual E to appeal the adverse benefit determination received on August 1, 2022?

Conclusion: Individual E’s 180-day period to appeal was suspended due to the Outbreak Period until the earlier of (i) one year from August 1, 2022 or (ii) July 10, 2023.   Because July 10, 2023 is earlier, the one-year rule does not apply, and the 180-day time period to appeal resumes on July 11, 2023 (the Outbreak Period expires universally the day before on July 10, 2023).  In other words, day one of the 180-day time period to appeal begins on July 11, 2023 and ends on January 6, 2024.