Outbreak Period to Be Applied on a One-Year Rolling Basis

Last spring, the U.S. Department of Labor (DOL) and Internal Revenue Service (IRS) issued a Joint Notice providing that certain employee benefit plan deadlines were being delayed due to the COVID-19 pandemic. Read our prior alert here. Deadlines delayed during the Outbreak Period (Outbreak Period Deadlines) are:

• HIPAA special enrollment deadlines
  • Marriage (30 days after marriage)
  • Birth/adoption/placement for adoption of child (30 days after birth/adoption/placement)
  • Loss of other coverage (30 days after loss)
  • Loss of Medicaid or SCHIP coverage (60 days after loss)
  • Acquisition of Medicaid/SCHIP premium assistance (60 days after acquisition)
• ERISA claims and appeals
  • Date by which claim for a benefit must be filed
  • Date by which appeal must be made after initial adverse benefit determination
  • Date to request external review
  • Date to file additional information to perfect a request for external review
• Most COBRA deadlines delayed
  • 60-day period to elect COBRA
  • All COBRA payment deadlines (initial and ongoing)
  • Deadlines for employee to notify GHP of divorce or dependent child losing eligibility
  • Deadline to notify GHP of disability determination by SSA (for purposes of 11-month COBRA extension)
  • Date to send out COBRA election notices 

In EBSA Disaster Relief Notice 2021-01, the DOL updated its prior guidance and announced that the Outbreak Period will end on a rolling basis at the earlier of (1) one year after the original deadline or (2) 60 days after the announced end of the National Emergency. The Notice also states that the IRS, the Department of Treasury, and HHS concur with this rule. We do not know when the National Emergency will end, but it seems unlikely to be soon. 

Thus, until the end of the National Emergency is announced, the Outbreak Period Deadlines are one year after the original deadline. For example, if the original deadline to make a COBRA premium payment was March 31, 2020, the new deadline to make the payment is March 31, 2021. If the original date by which a benefit claim was to be filed was July 1, 2020, the new deadline is July 1, 2021. If the original deadline to request a special enrollment due to marriage was April 30, 2020, the new deadline is April 30, 2021. However, new deadlines occurring after February 28, 2021 are still delayed. For example, if the original deadline for a COBRA payment is April 1, 2021, the new deadline will be April 1, 2022, unless the National Emergency ends more than 60 days before April 1, 2022.

Plan sponsors and administrators should consider getting this information to plan participants (including COBRA participants) as soon as possible, since some Outbreak Period Deadlines may occur this week. For plans subject to ERISA, the communication should be in the form of a summary of material modifications (SMM). Some employers may decide to provide the SMM to persons who are still eligible to elect COBRA (taking into account the Outbreak Period rules), but who have not yet elected COBRA.

State and local government plans are not subject to the Outbreak Period rules, and most such plans did not voluntarily adopt these rules.