Article contributed by Mark Adams
March 13, 2020, to May 11, 2023. Unless circumstances drastically change, those dates will mark the span of the COVID-19 National Public Health Emergency as the Biden Administration announced on February 10th that it would terminate the COVID-19 National Public Health Emergency on May 11, 2023.
Depending upon your point of view, the announcement marks another milestone in the United States efforts to combat COVID-19.
But from an employer perspective, what is the significance of that May 11th date?
Well, it depends. From a federal perspective, it does create some triggers that can have a bearing on an employer. For one, under the American Rescue Plan Act (ARPA), it sets the wheels in motion for COBRA administration to revert back to its former self. When ARPA was enacted, one of its many facets was that it tolled key COBRA timelines.
Among the aspects that were affected by ARPA include:
- the 60-day election period for COBRA continuation coverage
- the date for making COBRA premium payments.
- the deadline for employers to provide individuals with notice of their COBRA continuation rights.
- the 30-day (or 60-day in some cases) Special Election Period (SEP) to request enrollment in a group health plan.
- the timeframes for filing claims under the plans claim-processing procedures
- the deadlines for requesting internal and external appeals for adverse benefit determinations.
Subsequent guidance (EBSA Disaster Relief Notice 2021- 01) further clarified that the tolling applies to the earlier of one of the following:
- one year from when an individual would be required to comply with the COBRA obligation; or
- 60 days after the end of the Public Health Emergency
Applying this “60 days after the end of the Public Health Emergency” to the May 11th end date, that means that all tolling would end on July 10th, 2023, at which time the normal timelines would resume.
So, how does the end of the COVID-19 National Public Health Emergency apply in practice? Consider the following examples:
Example #1: An employee loses coverage due to a termination of employment on July 1, 2022. Because that termination occurred while the National Public Health Emergency was in effect, the normal COBRA 60-day election timeline is tolled in accordance with Notice 2021-01. Here, because the one-year maximum period would occur first, that would mean that the tolling of the COBRA election notice period would end one year out from the termination (on July 1, 2023) at which point the typical 60-day COBRA election clock would resume.
Example #2: By contrast, what about an employee who is terminated on November 1, 2022? Again the termination occurred while the National Public Health Emergency was in effect so the COBRA 60-day election timeline is once again tolled. However, in applying Notice 2021-01 to this case, the tolling wouldn’t be for one year but rather the tolling would end 60 days after the end of the National Public Health Emergency (July 10th – since that date is earlier). So, in this case, the COBRA 60-day election period would start on July 10th, 2023 (not November 1, 2023).
While we expect further guidance to be forthcoming between now and the end of the National Public Health Emergency on this application when it comes to all of these affected areas mentioned above, it is still recommended that employers review their existing requests for COBRA continuation coverage (or other aspects such as COBRA payments etc.) to ensure that proper additional time is afforded to COBRA qualified beneficiaries to exercise their rights.