How Will the End of the COVID-19 National Emergency Affect Extended Claims and Appeals Deadlines? 

How Will the End of the COVID-19 National Emergency Affect Extended Claims and Appeals Deadlines? 

QUESTION: Due to the COVID-19 emergency, we have been required to extend deadlines for participants and beneficiaries to submit claims and appeals under our employee benefit plans. How does the end of the COVID-19 national emergency affect these extensions? 

ANSWER: As you note, various plan-related deadlines have been extended—but for no longer than one year—by disregarding (tolling) the COVID-19 “outbreak period,” which ends 60 days after the end of the national emergency unless another end date is announced by the agencies. The COVID-19 national emergency ended on April 10, 2023. Although 60 days later would be June 9, 2023, the DOL has informally commented that, consistent with FAQs issued in March 2023, the outbreak period will end on July 10, 2023. 

The outbreak period relief extends the deadlines for individuals to file claims for benefits and appeals of adverse benefit determinations under employee benefit plans that are subject to ERISA or the Code—including group health plans, disability and other employee welfare benefit plans, and retirement plans. For group health plans, the extension also applies to deadlines for requesting external review following exhaustion of the plan’s internal appeals procedures and for perfecting an incomplete request for review. The disregarded period lasts until the earlier of (1) one year from the date the individual was first eligible for outbreak period relief, or (2) the end of the outbreak period. Once the disregarded period has ended, the regular timeframes resume. Thus, the extended deadline must be determined on an individual basis. For example: 

Alex, a participant in a group health plan that normally requires claims to be submitted within one year after the date of service, received medical care on July 1, 2022. The disregarded period begins on the service date (July 1, 2022) and ends on the earlier of one year later (July 1, 2023) or the end of the outbreak period (July 10, 2023). Thus, the plan’s regular one-year timeline begins to run on July 1, 2023, so the deadline for Alex to submit a claim is July 1, 2024. For medical care received on August 1, 2022, the disregarded period would end on July 10, 2023 (the earlier of the end of the outbreak period or one year after the service date), and then the plan’s regular one-year timeline would begin to run, so the deadline for submitting a claim would be July 10, 2024. 

Note that a different interpretation of the extension—applying the plan’s timeline first and the outbreak period relief after the end of the regular timeline—would produce a different result in some circumstances. Applying this interpretation to the first example above, the claim submission deadline would be July 10, 2023 (the earlier of July 10, 2023, or one year after the July 1, 2023, regular claim submission deadline). Given that the agencies, in the FAQs, encouraged plans to allow participants and beneficiaries more time to act, it seems advisable to take the approach that results in the later deadline. In any event, clear communication and consistency in application will be important. 

Although plans were not expressly granted more time to process and decide claims, the DOL recognized that the COVID-19 emergency may present challenges in achieving “full and timely compliance” with ERISA’s claims procedure requirements and said that its approach to enforcement would emphasize compliance assistance. But at this late stage of the pandemic, it seems unlikely that the DOL would grant plans much leeway in this regard. 

Source: Thomson Reuters 

How Will the End of the COVID-19 National Emergency Affect Extended Claims and Appeals Deadlines? 

CMS Fact Sheet Addresses End of COV-19 Public Health Emergency

HHS’s Center for Medicare & Medicaid Services (CMS) has issued a fact sheet addressing the end of the COVID-19 public health emergency (PHE), which (along with the COVID-19 national emergency) is anticipated to end on May 11, 2023. The fact sheet, which is addressed to individuals, confirms that HHS is expecting the PHE to expire at the end of the day on May 11 and provides information about the implications for coverage under private health insurance, as well as Medicare, Medicaid, and CHIP. Here are highlights relevant to employer-sponsored group health plans: 

  • COVID-19 Vaccines, Testing, and Treatments. Most plans must continue to cover vaccines furnished by in-network providers without cost sharing but may require individuals receiving vaccines from out-of-network providers to share part of the cost. When the PHE ends, mandatory coverage for OTC and laboratory-based COVID-19 PCR and antigen tests will end. Plans may choose to cover these tests but may require cost sharing, prior authorization, or other forms of medical management. The end of the PHE will not change how COVID-19 treatments are covered; plans that require cost sharing or apply deductibles may continue to do so. 
  • Access to Telehealth Services. As is currently the case during the PHE, coverage for telehealth and other remote care services may vary from plan to plan after the PHE ends. When covered, plans may impose cost-sharing, prior authorization, or other forms of medical management. 

Source: Thomson Reuters

How Will the End of the COVID-19 National Emergency Affect Extended Claims and Appeals Deadlines? 

White House signals COVID-19 public health emergency and national emergency end soon

The Biden Administration announced on Jan. 30 its intent to end the public health emergency and national emergency on May 11, 2023. Former President Donald Trump issued the emergency declaration in March 2020 in response to the nation’s COVID-19 crisis. President Joe Biden extended the emergency again on Feb. 18, 2022. 

The House of Representatives proposed ending the emergency immediately rather than wait until May 11. The administration responded saying that an abrupt end to the emergency declarations would create chaos within the nation’s health care system. 

The 60 days after the end of the national emergency will be significant as benefit related changes will take affect July 10, 2023. For plan sponsors, many benefit-related deadlines were extended as part of the national emergency, such as COBRA election and payment periods. With deadlines extensions ending, plan sponsors should work with COBRA and other third party-administrators in preparation for the rule changes affecting: 

  • election periods for COBRA continuation coverage 
  • COBRA premium payments 
  • HIPPA special enrollments 
  • claims, adverse decision appeals and external reviews 
How Will the End of the COVID-19 National Emergency Affect Extended Claims and Appeals Deadlines? 

Unused Qualified Parking Compensation Reductions Not Transferrable to Health FSA

The IRS has released an information letter responding to an inquiry from a qualified transportation plan participant whose employer decided to let him work from home permanently due to the COVID-19 pandemic. To avoid losing compensation reduction amounts he had previously set aside for parking, the participant asked whether his unused compensation reductions could be transferred to a health FSA under a cafeteria plan.

The letter explains that unused compensation reduction amounts under an employer’s qualified transportation plan can be carried over to subsequent periods under the plan and used for future commuting expenses, so long as the employee does not receive benefits that exceed the maximum excludable amount in any month. But cash refunds are not permitted, even to employees whose compensation reduction amounts exceed their need for qualified transportation fringe benefits. Furthermore, the Code prohibits cafeteria plans from offering qualified transportation fringe benefits, and IRS rules do not permit unused compensation reduction amounts under a qualified transportation plan to be transferred to a health FSA under a cafeteria plan. The letter also notes that COVID-19-related relief for FSAs gives employers the discretion to amend their cafeteria plans to permit midyear health FSA election changes for plan years ending in 2021.

EBIA Comment: The qualified transportation rules have proven sufficiently flexible to handle most situations resulting from the COVID-19 emergency. Most employers permit benefit election changes at least monthly, and plans can allow current participants to carry over unused balances indefinitely. Compensation reductions set aside for one qualified transportation benefit (e.g., parking) can even be used for a different transportation benefit (e.g., transit) if the plan permits and the maximum monthly benefit is not exceeded. But—as this participant’s request to transfer parking compensation reductions to a health FSA suggests—those options are not always sufficient. Because some risk of loss due to changing circumstances is unavoidable, employers should clearly articulate that risk to employees before they make compensation reduction elections.

Source: Thomson Reuters

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