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President Signs Legislation Ending COVID-19 National Emergency, But Questions Remain
Practical Law Legal Update w-039-1310 (Approx. 5 pages)
President Signs Legislation Ending COVID-19 National Emergency, But Questions Remain
by Practical Law Employee Benefits & Executive Compensation
| Published on 12 Apr 2023 • USA (National/Federal) |
On April 10, 2023, President Biden signed legislation to formally end the national emergency (NE) associated with COVID-19, as declared under the National Emergencies Act (Pub. L. No. 118-3, H.J. Res. 7 (2023)). However, the legislation does not end the COVID-19-related public health emergency (PHE), which is currently scheduled to end on May 11, 2023.
On April 10, 2023, President Biden signed legislation to formally end the national emergency (NE) associated with COVID-19, as declared under the National Emergencies Act (Pub. L. No. 118-3, H.J. Res. 7 (2023); see related White House press release). However, the legislation did not end the COVID-19-related public health emergency (PHE), which is currently scheduled to end on May 11, 2023. It is uncertain whether (if at all) the legislation affects the "outbreak period" guidance relating to the COVID-19 national emergency that was announced by the Departments of Labor (DOL), Health and Human Services (HHS), and Treasury (collectively, Departments) in 2020.
As background, the NE declaration for COVID-19 was issued by President Trump on March 13, 2020 (and effective March 1, 2020) under the National Emergencies Act and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) (85 Fed. Reg. 15337 (Mar. 18, 2020); Trump Admin. Ltr. (Mar. 13, 2020)). The White House has continually extended the COVID-19 NE, most recently (under the Biden administration) on February 10, 2023 (White House NE Continuation (Feb. 10, 2023)).
Relatedly, HHS previously declared a PHE due to COVID-19 on January 31, 2020. The PHE has also been continuously extended since early 2020, though on a more frequent schedule than the NE. While the PHE declaration is in effect, group health plans must comply with several COVID-19-related provisions—and relief guidance is available. For more information on the NE and PHE, see Practice Note, COVID-19 Compliance for Health and Welfare Plans: COVID-19 Public Health Emergency and National Emergency Declarations.
Benefits-Related Outbreak Period Guidance Under the COVID-19 NE
Earlier this year, the Biden administration announced its intent to end both the NE and PHE on May 11, 2023 (see Statement of Policy (Jan. 30, 2023) and Legal Update, White House Announces Continuation of COVID-19 National Emergency and May 11, 2023 End Date). In March, the Departments issued guidance addressing employee benefit compliance considerations related to winding down the PHE and NE (FAQ guidance (Mar. 29, 2023) "March 2023 FAQs").
Under the 2020 NE declaration and the Stafford Act, the Departments issued a final rule (citing authority under ERISA and the Internal Revenue Code (Code)) that tolled certain timeframes for employee benefit plans, participants, and beneficiaries (ERISA § 518 (29 U.S.C. § 1148); Code § 7508A(b) (26 U.S.C. § 7508A(b)); 85 Fed. Reg. 26351 (May 4, 2020)). The May 2020 final regulations provide that all group health plans that are subject to ERISA or the Code must disregard the period from March 1, 2020, until 60 days after the announced end of the COVID-19 NE for all participants or beneficiaries, wherever located, in calculating certain benefit-related timeframes listed in the final regulations. This set-aside time period is called an "outbreak period."
Benefits Actions to Which the NE-Related Outbreak Period Guidance Applies
The Departments' NE-related outbreak period guidance applies to the following benefits actions:
- The 30-day period (or 60-day period, if applicable) to request HIPAA special enrollment (see Practice Note, HIPAA Special Enrollment Rights).
- The 60-day period for electing COBRA (see Practice Note, COBRA Overview: Duration of Outbreak Periods and Standard Document, COBRA Election Notice).
- The deadline for making COBRA premium payments (see COBRA Toolkit and Practice Note, COBRA Overview: COBRA Premiums).
- The date by which individuals must notify a plan of COBRA qualifying events or disability determinations (see Standard Document, COBRA Qualifying Event Notice (Provided by Covered Employee or Qualified Beneficiary)).
- The deadline by which individuals must file benefit claims under a plan's claims procedures (see Practice Note, Internal Claims and Appeals Under the ACA).
- The deadline for claimants to file appeals of benefit denials under a plan's claims procedures.
- The date by which claimants may request external review after receiving benefit denials or final internal benefit denials (see Practice Note, External Review Under the ACA).
- The period within which a claimant may file information to perfect a request for external review after finding that the request was not complete.
- The deadline for plans to provide COBRA election notices to COBRA qualified beneficiaries (see Practice Note, COBRA Overview: Election Notice).
Duration of Outbreak Periods
The outbreak periods for the above-listed benefits actions are subject to statutory duration limits in ERISA and the Code, under which a set-aside period of up to one year is permitted (29 U.S.C. § 1148; 26 U.S.C. § 7508A). One year from March 1, 2020, was February 28, 2021. In follow-on guidance issued in February 2021, the Departments stated that individuals and plans with timeframes subject to the Departments' prior COVID-19 deadline extensions would have applicable periods disregarded until the earlier of:
- One year from the date they were first eligible for relief.
- 60 days after the announced end of the COVID-19 NE.
Under Notice 2021-01, for example, a claimant who was required to request external review by March 1, 2022, needed to make the request by the earlier of one year from that date (that is, March 1, 2023) or the end of the outbreak period. Each individual therefore has a unique outbreak period keyed to when the individual first becomes eligible for the one-year set-aside period.
Practical Impact
The April 2023 legislation was effective on April 10, 2023 (the date it was signed by the President). Since then, however, there have been questions about whether the legislation in fact ended the NE for purposes of the Departments' outbreak period guidance. It has been noted that the legislation references the National Emergencies Act but not the Stafford Act (which was the basis for the Departments' outbreak period guidance).
Informally, a DOL representative has indicated that the DOL continues to view May 11, 2023, as the NE end-date (meaning that the outbreak period guidance will expire on July 10, 2023). DOL has also taken the view (for now, unofficially) that the April 2023 legislation does not affect the end of the NE for purposes of the Departments' outbreak period guidance. The DOL representative indicated that official guidance on this issue is being developed and will be published in the near future.