On Friday, February 26, the Department of Labor (DOL) published Disaster Relief Notice 2021-01, a follow up to the Joint Notice published May 4, 2020. The May notice required that health and retirement plans disregard a number of deadlines for individuals during the COVID-19 National Emergency, plus a 60-day period (the “Outbreak Period”) starting March 1, 2020.
The COBRA deadlines impacted in the May 2020 notice include:
- Deadline for participants to elect coverage;
- Deadline for participants to pay premiums;
- Deadline for plan to provide election notice
The February 26 notice clarifies the position of the DOL and IRS that the one-year COVID-19 extensions will continue past February 28th, and that the extensions must be measured on an individual, person-by-person basis. Prior to last Friday’s announcement, most viewed the May 2020 guidance as applying as a whole, single period beginning March 1, 2020 and ending February 28, 2021, under the one-year statutory limitation.
The tolling period applies to the shorter of:
- the 12-month clock for a Qualifying Beneficiary (QB) who was eligible for COBRA to make an election/make payment, or
- 60 days after the end of the COVID-19 National Emergency
In addition, if a QB’s clock started prior to March 1, 2020, the elapsed time counts and the clock restarts on March 1, 2021 with the remaining days still available.
Examples for COBRA Tolling Periods due to COVID-19
Following this clarification, here are some examples of how it could apply:
Example 1: A QB gets the full 12-month extension because the COVID-19 National Emergency is still ongoing
If John Q became eligible for COBRA on March 1, 2020, the 60-day period to elect COBRA begins March 1, 2021.
Example 2: A QB is COBRA-eligible, but the National Emergency ends before his personal 12-month period expires
If John Q became COBRA eligible on July 1, 2020 but the National Emergency ends April 1, 2021, then John Q’s clock to elect would begin May 31, 2021 (end of the National Emergency + 60 days). He would not get the full 12 month extension because the National Emergency ended.
Example 3: A QB’s election window began before the March 1, 2020 National Emergency start date
If John Q was eligible for COBRA on February 1, 2020, his clock would have started on February 1, but paused on March 1, 2020. The clock resumes on March 1, 2021 with 31 additional days to elect since 29 days had already expired.
Additional Concerns Needing Clarification
As COBRA administrators attempt to rectify delays to elections and payments, there are some additional items that industry legal experts are looking to resolve.
- While not explicitly required, what notices should plans consider sending? This could apply to:
- An individual notice about the expiration of individual extensions
- Updated supplemental notice to QBs who were eligible for COBRA after January 1, 2020 regarding how this new guidance affects them
- Information about the Health Insurance Marketplace established by Executive Order 14009
- What constitutes a “reasonable accommodation,” as referenced in Notice 2021-01?
- How could potential COBRA subsidies (passed by the House and under consideration by the Senate) affect employers and premiums?
In the coming weeks, the industry hopes to have more answers to these lingering questions. It may be in the best interest for COBRA administrators to contact insurance carriers to see how the February 26 notice impacts their beneficiaries’ plans and how to proceed.
This article does not constitute legal advice. COBRA administrators should contact their qualified benefits counsel for more information.
DataPath, Inc. is a leading technology provider for cloud-based COBRA administration solutions.