The Department of Labor (DOL) and other federal regulators released updates and clarifications related to employee benefits, including updates to model COBRA notices and an extension of certain statutory deadlines intended to minimize the possibility of participants and beneficiaries losing benefits during the COVID-19 pandemic. This article highlights the DOL’s recent changes and updates relating to Consolidated Omnibus Budget Reconciliation Act (COBRA).
Updated COBRA Notices
On May 1, 2020, the DOL released the first updates to its model COBRA Notices since 2014. The models are for the (i) general or initial notice (provided to employees and covered spouses within the first 90 days of coverage under the group health plan), and (ii) the election notice (provided to qualified beneficiaries within 44 days of the qualifying event resulting in a loss of coverage). The notices inform plan participants and other qualified beneficiaries of their rights to health continuation coverage upon a qualifying event. The release of these updated model COBRA notices is an important reminder for employers to ensure that plan participants receive timely and adequate information about their COBRA rights.
More Information about Medicare: The primary update to the DOL model notice is a new Q&A section, “Can I enroll in Medicare instead of COBRA continuation coverage after my group health plan coverage ends?”, with similar content in a companion FAQ about COBRA and Medicare options.
Risk of Noncompliance
Employers do not have to use the model notices, however the DOL considers using the model notices, appropriately completed, to be good-faith compliance with COBRA’s notice content requirements. Our firm recently discussed the rapid expansion of class action litigation against employers that issued COBRA election notices that failed to follow the DOL model notice in detail. We strongly recommend that employers use the updated DOL COBRA notice forms (or some enhanced version of such notices).
If the updated model notices are not used, the employer should ensure that their COBRA notices include the most current information from the DOL. Because of the significant exposure for COBRA noncompliance, and because employers retain liability for COBRA compliance even if a third-party vendor is hired for COBRA administration, employers should have their COBRA notices regularly reviewed.
COBRA Deadline Extensions
On April 29, 2020, the DOL and Internal Revenue Service (IRS) issued a Joint Notice extending certain time frames affecting a participant’s right to continuation of group health plan coverage under COBRA after employment ends. Normally, a qualified beneficiary has 60 days from the date of receipt of the COBRA notice to elect COBRA, another 45 days after the date of the COBRA election to make the initial required COBRA premium payments, and COBRA coverage may be terminated for failure to pay premiums timely. A premium is considered timely if paid within a 30-day grace period.
The Joint Notice extends the above deadlines (and many other participant-related deadlines such as HIPAA special enrollments, claim appeals and external review filings) by requiring plans to disregard the period from March 1, 2020, until 60 days after the announced end of the National Emergency (known as the “Outbreak Period”).
Election Period Extension: once a participant receives his or her timely COBRA election notification, the applicable COBRA deadlines are now extended until after the Outbreak Period ends. For COBRA election purposes, this means if a qualifying beneficiary receives the election notice on or after March 1, 2020, the 60-day initial COBRA election period does not begin until the end of the Outbreak Period. The participant then has another 45 days after that to make the required COBRA premium payments (that still apply back to the date on which previous employer coverage ended). The more time provided to qualified beneficiaries to elect and pay for coverage retroactive to the date coverage is lost, the greater the opportunity to game the system.
As an example, if the National Emergency period is proclaimed to end on May 31, 2020, the “Outbreak Period” will be deemed to end on July 30, 2020. If an employee was provided a COBRA election notice on April 1, 2020, that person’s initial COBRA election deadline will be extended from the original deadline of May 31, 2020 (the 60th day from date of receipt of COBRA election notice) to a new COBRA election deadline of September 28, 2020 (i.e., 60 days from the end of the Outbreak Period). That individual then has 45 more days to make the first COBRA premium payment for all coverage back to the original date of coverage loss.
Premium Payment Extension: Likewise, for individuals already on COBRA, the deadlines to make required monthly premium contributions are extended until 30 days after the end of the Outbreak Period, and the guidance makes clear that an employer or health insurance carrier cannot terminate coverage or reject any claims for nonpayment of premium during this period. Such coverage termination can only occur if the individual fails to make all the required monthly premium contributions at the end of the Outbreak Period.
For example, an individual previously elected COBRA and has been paying monthly COBRA premiums since March 1, 2020. That individual does not pay applicable monthly COBRA premiums for April, May, June, or July. Under the extension guidance, the Plan must allow the individual until 30 days after the end of the Outbreak Period (or, August 29, using the dates from the prior example) to fully pay all prior months of COBRA premiums to maintain the COBRA coverage. Health plans and insurance carriers are burdened with holding all claims submitted during the extension period to know whether coverage will or won’t be paid as required.
Employer COBRA Notice Period Extension: The Joint Notice potentially also allows plans, plan administrators, and employers to have extra time to provide the COBRA election notice but the guidance is unclear about how that extension period applies. Until further guidance is issued to add clarity, we recommend that employers, other plan sponsors and administrators continue to send the COBRA election notices based on existing law and rely on the extension only if necessary.
Complications will likely result under this new guidance, and thus we strongly recommend working with COBRA administrators to ensure proper compliance is maintained throughout the Outbreak Period and beyond.
Participant Options for Coverage
Lastly, the DOL updated its ongoing FAQ guidance for participants to know and understand their health insurance and other benefit rights and coverage options before, during, and after the National Emergency period ends. While this guidance is directed to participants and beneficiaries, employers may also find it instructive to ensure they are providing proper coverage alternatives.
Employers can find a consolidation of almost all the DOL’s recent COVID-19 related guidance about benefits on its website. Jackson Lewis is ready to assist all employers in making sure they understand these and other ongoing changes and updates.