The extended deadlines

Recently, the Departments of Labor (DOL) and Treasury, in coordination with the Department of Health and Human Services (HHS), released a final rule to extend certain pre-established deadlines for plans and individuals. The extensions relate to HIPAA special enrollment, COBRA and claims and appeals deadlines. (For a summary of the final rule, see our May 1, 2020 web post.)

The authority for the DOL and IRS to extend these deadlines is found in ERISA and the Internal Revenue Code. No similar authority is present in the Public Health Service Act, which applies to non-federal governmental plans.

Consequently, the extension of deadlines for COBRA, claims and appeals, or special enrollment is not mandatory for non-federal governmental plans. However, HHS encourages these plans to provide this relief and encourages states and health insurers to act consistently with the DOL/Treasury regulation.

New guidance from CMS

In the new guidance, CMS states that it concurs with the DOL/IRS delay regulation.

The guidance also notes that CMS will adopt a temporary policy of relaxed enforcement. This means that state and local governmental group health plans may suspend deadlines relating to claims and appeals, COBRA or special enrollment in the same manner as private plans for the duration of the COVID-19 national emergency plus 60 days. 

To the extent the emergency ends on different dates in different parts of the country, the CMS relaxed enforcement policy will be consistent with additional guidance issued by DOL.

Implications for sponsors of governmental health plans

Sponsors of governmental plans can decide whether to adopt the delays. One consideration is what accommodations their insurance carriers or third-party administrators are willing to make.

Plan sponsors that decide to permit some or all of the delayed deadlines may wish to notify participants about them.

On all issues involving the interpretation or application of laws and regulations, plan sponsors should discuss the issues raised here with their legal, tax and other advisors before determining how the issues apply to their specific situations.