Early End to National Emergency Creates 'Outbreak Period' Confusion 

On Monday, April 10, 2023, President Biden signed into law H.J.Res. 7, ending the COVID-19 national emergency (NE) immediately, rather than on May 11, 2023 as previously announced. Employers will need to continue preparations for the end of the Outbreak Period relief tied to the NE. We understand that the Department of Labor has suggested on an informal basis that the previously communicated July 10, 2023 date will still mark the end of the Outbreak Period.

The end of the National Emergency does not impact the HHS-declared Public Health Emergency (PHE), which remains set to end on May 11.

During the NE, group health plans and other applicable ERISA plans have been required to extend certain participant deadlines that would have expired during the Outbreak Period, which began March 1, 2020 and ends 60 days after the end of the NE or another date announced by regulators. These deadlines relate to:

• Special enrollment rights under HIPAA
• COBRA elections, payments and notifications
• Benefit claims, appeals and external reviews

In a recently released FAQ, the Departments of Labor, Health and Human Services, and Treasury anticipated that the Outbreak Period would end July 10, 2023, following the end of the NE on May 11, 2023. The agencies’ recent guidance provides many helpful examples illustrating how the extended deadlines available during the Outbreak Period will wind down, but all of the examples assume the NE ends on May 11, 2023 and Outbreak Period ends on July 10, 2023. It is unclear whether the agencies will issue guidance specifically confirming that the Outbreak Period end date will remain July 10, 2023, now that the NE ends earlier.

In any case, the examples provided in the FAQs demonstrate that an individual’s deadline is based on the date of the triggering event:

• An event occurring before the end of the Outbreak Period – the clock starts ticking on the day on which the Outbreak Period ends [presumably July 10]
• An event occurring after the end of the Outbreak Period - the clock starts ticking on the date of the triggering event, i.e., there is no deadline extension

Employers should continue their preparation for the end of the Outbreak Period relief, now that the NE has ended. Start by reviewing communications related to the Outbreak Period relief, and evaluate whether any previous communications about deadlines, such as COBRA paperwork, need to be corrected in light of the end of the NE. Consider whether to extend deadlines impacted by the Outbreak Relief beyond what is required. This is encouraged by the agencies, but plan sponsors should be sure to consult with their insurer or stop-loss carrier before adopting such a change. Don’t forget to check with group health plan administrators – including TPAs, claims administrators, COBRA administrators, carriers, FSA vendors (and stop-loss carrier) to determine how the end of the NE and accompanying Outbreak Period will affect plan administration.

Check out our prior blog to learn about new guidance addressing the end of the Public Health Emergency.