Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak, 26351-26355 [2020-09399]

Download as PDF Federal Register / Vol. 85, No. 86 / Monday, May 4, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES Written/Paper Submissions Submit written/paper submissions as follows: • Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852. • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in ‘‘Instructions.’’ Instructions: All submissions received must include the Docket No. FDA– 2015–N–3785 for ‘‘Classification of Posterior Cervical Screw Systems: Small Entity Compliance Guide.’’ Received comments will be placed in the docket and, except for those submitted as ‘‘Confidential Submissions,’’ publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday. • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states ‘‘THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.’’ The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as ‘‘confidential.’’ Any information marked as ‘‘confidential’’ will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA’s posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https:// www.govinfo.gov/content/pkg/FR-201509-18/pdf/2015-23389.pdf. Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https:// www.regulations.gov and insert the VerDate Sep<11>2014 16:47 May 01, 2020 Jkt 250001 docket number, found in brackets in the heading of this document, into the ‘‘Search’’ box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852. You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)). An electronic copy of the guidance document is available for download from the internet. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidance. Submit written requests for a single hard copy of the SECG entitled ‘‘Classification of Posterior Cervical Screw Systems: Small Entity Compliance Guide’’ to the Office of Policy, Guidance and Policy Development, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993–0002. Send one selfaddressed adhesive label to assist that office in processing your request. FOR FURTHER INFORMATION CONTACT: Constance Soves, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1656, Silver Spring, MD 20993–0002, 301–796–6951, Constance.Soves@fda.hhs.gov. SUPPLEMENTARY INFORMATION: I. Background In the Federal Register of April 1, 2019 (84 FR 12088), FDA issued a final rule to classify posterior cervical screw systems into class II (special controls) and to continue to require a premarket notification (510(k)) to provide a reasonable assurance of safety and effectiveness of the device (the final rule). The final rule, which is codified at 21 CFR 888.3075, became effective May 1, 2019. In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104–121, as amended by Pub. L. 110–28), FDA is making this SECG available to explain the actions that a small entity must take to comply with the final rule. This level 2 guidance is being issued consistent with our good guidance practices regulation (21 CFR 10.115(c)(2)). The SECG represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 26351 II. Paperwork Reduction Act of 1995 The guidance refers to previously approved FDA collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501– 3521). The collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910–0120; the collections of information in 21 CFR part 801 have been approved under OMB control number 0910–0485; and the collections of information in 21 CFR part 807, subparts A through D, have been approved under OMB control number 0910–0625. III. Electronic Access Persons interested in obtaining a copy of the SECG may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at https://www.fda.gov/MedicalDevices/ DeviceRegulationandGuidance/ GuidanceDocuments/default.htm. This guidance document is also available at https://www.regulations.gov. Persons unable to download an electronic copy of ‘‘Classification of Posterior Cervical Screw Systems’’ may send an email request to CDRH-Guidance@fda.hhs.gov to receive an electronic copy of the document. Please use the document number 20008 and complete title to identify the guidance you are requesting. Date: April 24, 2020. Lowell J. Schiller, Principal Associate Commissioner for Policy. [FR Doc. 2020–09188 Filed 5–1–20; 8:45 am] BILLING CODE 4164–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 54 DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Parts 2560 and 2590 Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID–19 Outbreak Employee Benefits Security Administration, Department of Labor; AGENCY: E:\FR\FM\04MYR1.SGM 04MYR1 26352 Federal Register / Vol. 85, No. 86 / Monday, May 4, 2020 / Rules and Regulations Internal Revenue Service, Department of the Treasury. ACTION: Notification of relief; extension of timeframes. This document announces the extension of certain timeframes under the Employee Retirement Income Security Act and the Internal Revenue Code for group health plans, disability and other welfare plans, pension plans, and participants and beneficiaries of these plans during the COVID–19 National Emergency. DATES: May 4, 2020. FOR FURTHER INFORMATION CONTACT: Department of Labor, Elizabeth Schumacher or David Sydlik, Office of Health Plan Standards and Compliance Assistance, Employee Benefits Security Administration, at 202–693–8335, and Thomas Hindmarch, Office of Regulations and Interpretations, Employee Benefits Security Administration, at 202–693–8500; or William Fischer, Department of the Treasury, Internal Revenue Service, Office of Chief Counsel (Employee Benefits, Exempt Organizations and Employment Taxes) at 202–317–5500. SUPPLEMENTARY INFORMATION: SUMMARY: jbell on DSKJLSW7X2PROD with RULES I. Purpose On March 13, 2020, President Trump issued the Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID–19) Outbreak 1 and by separate letter made a determination, under section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq., that a national emergency exists nationwide beginning March 1, 2020, as the result of the COVID–19 outbreak (the National Emergency).2 As a result of that determination, the Federal Emergency Management Agency (FEMA) issued emergency declarations for every state, territory, and possession of the United States.3 As a result of the National Emergency, participants and beneficiaries covered by group health plans, disability or other employee welfare benefit plans, 1 Available at https://www.whitehouse.gov/ presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirusdisease-covid-19-outbreak/. 2 March 13, 2020 letter from President Trump to Secretaries of the Departments of Homeland Security, the Treasury, and Health and Human Services and the Administrator of the Federal Emergency Management Agency, available at https://www.whitehouse.gov/briefings-statements/ letter-president-donald-j-trump-emergencydetermination-stafford-act/. 3 FEMA Release Number HQ–20–017–FactSheet available at https://www.fema.gov/news-release/ 2020/03/13/covid-19-emergency-declaration. VerDate Sep<11>2014 16:47 May 01, 2020 Jkt 250001 and employee pension benefit plans may encounter problems in exercising their health coverage portability and continuation coverage rights, or in filing or perfecting their benefit claims. Recognizing the numerous challenges participants and beneficiaries already face as a result of the National Emergency, it is important that the Employee Benefits Security Administration, Department of Labor, Internal Revenue Service, and Department of the Treasury (the Agencies) take steps to minimize the possibility of individuals losing benefits because of a failure to comply with certain pre-established timeframes. Similarly, the Agencies recognize that affected group health plans may have difficulty in complying with certain notice obligations. Accordingly, under the authority of section 518 of the Employee Retirement Income Security Act of 1974 (ERISA) and section 7508A(b) of the Internal Revenue Code of 1986 (the Code), the Agencies are extending certain timeframes otherwise applicable to group health plans, disability and other welfare plans, pension plans, and their participants and beneficiaries under ERISA and the Code.4 The Agencies believe that such relief is immediately needed to preserve and protect the benefits of participants and beneficiaries in all employee benefit plans across the United States during the National Emergency. Accordingly, the Agencies have determined, pursuant to section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A), (B) and 553(d), that there is good cause for granting the relief provided by this document effective immediately upon publication, and that notice and public participation may result in undue delay and, therefore, be contrary to the public interest.5 4 ERISA section 518 and Code section 7508A(b) generally provide that, in the case of an employee benefit plan, sponsor, administrator, participant, beneficiary, or other person with respect to such a plan affected by a Presidentially declared disaster, notwithstanding any other provision of law, the Secretaries of Labor and the Treasury may prescribe (by notice or otherwise) a period of up to one year that may be disregarded in determining the date by which any action is required or permitted to be completed. Section 518 of ERISA and section 7508A(b) of the Code further provide that no plan shall be treated as failing to be operated in accordance with the terms of the plan solely as a result of complying with the postponement of a deadline under those sections. 5 Good cause exists for the same reasons underlying the issuance of the March 13, 2020 Proclamation on Declaring a National Emergency Concerning the Coronavirus Disease 2019 (COVID– 19) Outbreak and the determination, under section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121, et seq., that a national emergency exists nationwide as a PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 This document has been reviewed by the Department of Health and Human Services (HHS), which has advised the Agencies that HHS concurs with the relief specified in this document.6 HHS has advised the Agencies that HHS will exercise enforcement discretion to adopt a temporary policy of measured enforcement to extend similar timeframes otherwise applicable to nonFederal governmental group health plans and health insurance issuers offering coverage in connection with a group health plan, and their participants, beneficiaries and enrollees under applicable provisions of the Public Health Service Act (PHS Act). HHS has advised the Agencies that HHS encourages plan sponsors of nonFederal governmental group health plans to provide relief similar to that specified in this document to participants and beneficiaries, and encourages states and health insurance issuers offering coverage in connection with a group health plan to enforce and operate, respectively, in a manner consistent with the relief provided in this document. HHS has also advised the Agencies that HHS will not consider a state to have failed to substantially enforce the applicable provisions of title XXVII of the PHS Act if the state takes such an approach. The relief provided by this document supplements other COVID–19 guidance issued by the Agencies, which can be accessed on the internet at: https:// www.dol.gov/agencies/ebsa/employersand-advisers/plan-administration-andcompliance/disaster-relief and https:// www.irs.gov/coronavirus. II. Background Title I of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides portability of health coverage by, among other things, result of the COVID–19 pandemic, and the same reasons underlying the issuance of the January 31, 2020 declaration that a public health emergency exists under section 319 of the Public Health Service Act (PHS Act). 6 Section 104 of the Title I of Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires that the Secretaries of Labor, the Treasury, and Health and Human Services (the Departments) ensure through an interagency Memorandum of Understanding (MOU) that regulations, rulings, and interpretations issued by each of the Departments relating to the same matter over which two or more departments have jurisdiction, are administered so as to have the same effect at all times. Under section 104, the Departments, through the MOU, are to provide for coordination of policies relating to enforcement of the same requirements in order to have a coordinated enforcement strategy that avoids duplication of enforcement efforts and assigns priorities in enforcement. See section 104 of HIPAA and Memorandum of Understanding applicable to Title XXVII of the PHS Act, Part 7 of ERISA, and Chapter 100 of the Code, published at 64 FR 70164, December 15, 1999. E:\FR\FM\04MYR1.SGM 04MYR1 Federal Register / Vol. 85, No. 86 / Monday, May 4, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES requiring special enrollment rights into group health plans upon the loss of eligibility of coverage. ERISA section 701, Code section 9801, 29 CFR 2590.701–6, 26 CFR 54.9801–6. Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) permits qualified beneficiaries who lose coverage under a group health plan to elect continuation health coverage. ERISA section 601, Code section 4980B, 26 CFR 54.4980B–1. Section 503 of ERISA and 29 CFR 2560.503–1 require employee benefit plans subject to Title I of ERISA to establish and maintain reasonable procedures governing the determination and appeal of claims for benefits under the plan. Section 2719 of the PHS Act, incorporated into ERISA by ERISA section 715, and into the Code by Code section 9815, imposes additional rights and obligations with respect to internal claims and appeals and external review for nongrandfathered group health plans and health insurance issuers offering nongrandfathered group or individual health insurance coverage. See also 29 CFR 2590.715–2719 and 26 CFR 54.9815–2719. All of the foregoing provisions include timing requirements for certain acts in connection with employee benefit plans, some of which are being modified by this document. to elect COBRA continuation coverage under a group health plan. ERISA section 605 and Code section 4980B(f)(5). Plans are required to allow payment of premiums in monthly installments, and plans cannot require payment of premiums before 45 days after the day of the initial COBRA election. ERISA section 602(3) and Code section 4980B(f)(2)(C). COBRA continuation coverage may be terminated for failure to pay premiums timely. ERISA section 602(2)(C) and Code section 4980B(f)(2)(B)(iii). Under the COBRA rules, a premium is considered paid timely if it is made not later than 30 days after the first day of the period for which payment is being made. ERISA section 602(2)(C), Code section 4980B(f)(2)(B)(iii), and 26 CFR 54.4980B–8 Q&A–5(a). Notice requirements prescribe time periods for employers to notify the plan of certain qualifying events and for individuals to notify the plan of certain qualifying events or a determination of disability. Notice requirements also prescribe a time period for plans to notify qualified beneficiaries of their rights to elect COBRA continuation coverage. ERISA section 606, Code section 4980B(f)(6), and 29 CFR 2590.606–3. A. Special Enrollment Timeframes In general, HIPAA requires a special enrollment period in certain circumstances, including when an employee or dependent loses eligibility for any group health plan or other health insurance coverage in which the employee or the employee’s dependents were previously enrolled (including coverage under Medicaid and the Children’s Health Insurance Program), and when a person becomes a dependent of an eligible employee by birth, marriage, adoption, or placement for adoption. ERISA section 701(f), Code section 9801(f), 29 CFR 2590.701–6, and 26 CFR 54.9801–6. Generally, group health plans must allow such individuals to enroll in the group health plan if they are otherwise eligible and if enrollment is requested within 30 days of the occurrence of the event (or within 60 days, in the case of the special enrollment rights added by the Children’s Health Insurance Program Reauthorization Act of 2009). ERISA section 701(f), Code section 9801(f), 29 CFR 2590.701–6, and 26 CFR 54.9801– 6. C. Claims Procedure Timeframes Section 503 of ERISA and 29 CFR 2560.503–1, as well as section 2719 of the PHS Act, incorporated into ERISA by ERISA section 715 and 29 CFR 2590.715–2719, and into the Code by Code section 9815 and 26 CFR 54.9815– 2719, require ERISA-covered employee benefit plans and non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage to establish and maintain a procedure governing the filing and initial disposition of benefit claims, and to provide claimants with a reasonable opportunity to appeal an adverse benefit determination to an appropriate named fiduciary. Plans may not have provisions that unduly inhibit or hamper the initiation or processing of claims for benefits. Further, group health plans and disability plans must provide claimants at least 180 days following receipt of an adverse benefit determination to appeal (60 days in the case of pension plans and other welfare benefit plans). 29 CFR 2560.503– 1(h)(2)(i) and (h)(3)(i), 29 CFR 2590.715–2719(b)(2)(ii)(C), and 26 CFR 54.9815–2719(b)(2)(ii)(C). B. COBRA Timeframes The COBRA continuation coverage provisions generally provide a qualified beneficiary a period of at least 60 days D. External Review Process Timeframes PHS Act section 2719, incorporated into ERISA by ERISA section 715 and into the Code by Code section 9815, sets VerDate Sep<11>2014 16:47 May 01, 2020 Jkt 250001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 26353 out standards for external review that apply to non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage and provides for either a state external review process or a Federal external review process. Standards for external review processes and timeframes for submitting claims to the independent reviewer for group health plans or health insurance issuers may vary depending on whether a plan uses a State or Federal external review process. For plans or issuers that use the Federal external review process, the process must allow at least four months after the receipt of a notice of an adverse benefit determination or final internal adverse benefit determination for a request for an external review to be filed. 29 CFR 2590.715–2719(d)(2)(i) and 26 CFR 54.9815–2719(d)(2)(i). The Federal external review process also provides for a preliminary review of a request for external review. The regulation provides that if such request is not complete, the Federal external review process must provide for a notification that describes the information or materials needed to make the request complete, and the plan or issuer must allow a claimant to perfect the request for external review within the four-month filing period or within the 48-hour period following the receipt of the notification, whichever is later. 29 CFR 2590.715–2719(d)(2)(ii)(B) and 26 CFR 54.9815–2719(d)(2)(ii)(B). III. Relief A. Relief for Plan Participants, Beneficiaries, Qualified Beneficiaries, and Claimants Subject to the statutory duration limitation in ERISA section 518 and Code section 7508A,7 all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Code must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a future notification (the ‘‘Outbreak Period’’) 8 for all plan participants, beneficiaries, qualified beneficiaries, or claimants wherever located in determining the following periods and dates— (1) The 30-day period (or 60-day period, if applicable) to request special enrollment under ERISA section 701(f) and Code section 9801(f), 7 See footnote 4, supra. the extent there are different Outbreak Period end dates for different parts of the country, the Agencies will issue additional guidance regarding the application of the relief in this document. 8 To E:\FR\FM\04MYR1.SGM 04MYR1 26354 Federal Register / Vol. 85, No. 86 / Monday, May 4, 2020 / Rules and Regulations (2) The 60-day election period for COBRA continuation coverage under ERISA section 605 and Code section 4980B(f)(5),9 (3) The date for making COBRA premium payments pursuant to ERISA section 602(2)(C) and (3) and Code section 4980B(f)(2)(B)(iii) and (C),10 (4) The date for individuals to notify the plan of a qualifying event or determination of disability under ERISA section 606(a)(3) and Code section 4980B(f)(6)(C), (5) The date within which individuals may file a benefit claim under the plan’s claims procedure pursuant to 29 CFR 2560.503–1, (6) The date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure pursuant to 29 CFR 2560.503–1(h), (7) The date within which claimants may file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination pursuant to 29 CFR 2590.715–2719(d)(2)(i) and 26 CFR 54.9815–2719(d)(2)(i), and (8) The date within which a claimant may file information to perfect a request for external review upon a finding that the request was not complete pursuant to 29 CFR 2590.715–2719(d)(2)(ii) and 26 CFR 54.9815–2719(d)(2)(ii). B. Relief for Group Health Plans With respect to group health plans, and their sponsors and administrators, the Outbreak Period shall be disregarded when determining the date for providing a COBRA election notice under ERISA section 606(c) and Code section 4980B(f)(6)(D). C. Later Extensions jbell on DSKJLSW7X2PROD with RULES The Agencies will continue to monitor the effects of the Outbreak and may provide additional relief as warranted. 9 The term ‘‘election period’’ is defined as ‘‘the period which—(A) begins not later than the date on which coverage terminates under the plan by reason of a qualifying event, (B) is of at least 60 days’ duration, and (C) ends not earlier than 60 days after the later of—(i) the date described in subparagraph (A), or (ii) in the case of any qualified beneficiary who receives notice under section 1166(a)(4) of this title, the date of such notice.’’ 29 U.S.C. 1165(a)(1), ERISA section 605(a)(1). See also Code section 4980B(f)(5). 10 Under this provision, the group health plan must treat the COBRA premium payments as timely paid if paid in accordance with the periods and dates set forth in this document. Regarding coverage during the election period and before an election is made, see 26 CFR 54.4980B–6, Q&A 3; during the period between the election and payment of the premium, see 26 CFR 54.4980B–8, Q&A 5(c). VerDate Sep<11>2014 16:47 May 01, 2020 Jkt 250001 IV. Examples The following examples illustrate the timeframe for extensions required by this document. An assumed end date for the National Emergency was needed to make the examples clear and understandable. Accordingly, the Examples assume that the National Emergency ends on April 30, 2020, with the Outbreak Period ending on June 29, 2020 (the 60th day after the end of the National Emergency). To the extent there are different Outbreak Period end dates for different parts of the country, the Agencies will issue additional guidance regarding the application of the relief in this document. Example 1 (Electing COBRA). (i) Facts. Individual A works for Employer X and participates in X’s group health plan. Due to the National Emergency, Individual A experiences a qualifying event for COBRA purposes as a result of a reduction of hours below the hours necessary to meet the group health plan’s eligibility requirements and has no other coverage. Individual A is provided a COBRA election notice on April 1, 2020. What is the deadline for A to elect COBRA? (ii) Conclusion. In Example 1, Individual A is eligible to elect COBRA coverage under Employer X’s plan. The Outbreak Period is disregarded for purposes of determining Individual A’s COBRA election period. The last day of Individual A’s COBRA election period is 60 days after June 29, 2020, which is August 28, 2020. Example 2 (Special enrollment period). (i) Facts. Individual B is eligible for, but previously declined participation in, her employersponsored group health plan. On March 31, 2020, Individual B gave birth and would like to enroll herself and the child into her employer’s plan; however, open enrollment does not begin until November 15. When may Individual B exercise her special enrollment rights? (ii) Conclusion. In Example 2, the Outbreak Period is disregarded for purposes of determining Individual B’s special enrollment period. Individual B and her child qualify for special enrollment into her employer’s plan as early as the date of the child’s birth. Individual B may exercise her special enrollment rights for herself and her child into her employer’s plan until 30 days after June 29, 2020, which is July 29, 2020, provided that she pays the premiums for any period of coverage. Example 3 (COBRA premium payments). (i) Facts. On March 1, 2020, Individual C was receiving COBRA continuation coverage under a group PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 health plan. More than 45 days had passed since Individual C had elected COBRA. Monthly premium payments are due by the first of the month. The plan does not permit qualified beneficiaries longer than the statutory 30-day grace period for making premium payments. Individual C made a timely February payment, but did not make the March payment or any subsequent payments during the Outbreak Period. As of July 1, Individual C has made no premium payments for March, April, May, or June. Does Individual C lose COBRA coverage, and if so for which month(s)? (ii) Conclusion. In this Example 3, the Outbreak Period is disregarded for purposes of determining whether monthly COBRA premium installment payments are timely. Premium payments made by 30 days after June 29, 2020, which is July 29, 2020, for March, April, May, and June 2020, are timely, and Individual C is entitled to COBRA continuation coverage for these months if she timely makes payment. Under the terms of the COBRA statute, premium payments are timely if made within 30 days from the date they are first due. In calculating the 30-day period, however, the Outbreak Period is disregarded, and payments for March, April, May, and June are all deemed to be timely if they are made within 30 days after the end of the Outbreak Period. Accordingly, premium payments for four months (i.e., March, April, May, and June) are all due by July 29, 2020. Individual C is eligible to receive coverage under the terms of the plan during this interim period even though some or all of Individual C’s premium payments may not be received until July 29, 2020. Since the due dates for Individual C’s premiums would be postponed and Individual C’s payment for premiums would be retroactive during the initial COBRA election period, Individual C’s insurer or plan may not deny coverage, and may make retroactive payments for benefits and services received by the participant during this time. Example 4 (COBRA premium payments). (i) Facts. Same facts as Example 3. By July 29, 2020, Individual C made a payment equal to two months’ premiums. For how long does Individual C have COBRA continuation coverage? (ii) Conclusion. Individual C is entitled to COBRA continuation coverage for March and April of 2020, the two months for which timely premium payments were made, and Individual C is not entitled to COBRA continuation coverage for any month after April 2020. Benefits and services E:\FR\FM\04MYR1.SGM 04MYR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 86 / Monday, May 4, 2020 / Rules and Regulations provided by the group health plan (e.g., doctors’ visits or filled prescriptions) that occurred on or before April 30, 2020 would be covered under the terms of the plan. The plan would not be obligated to cover benefits or services that occurred after April 2020. Example 5 (Claims for medical treatment under a group health plan). (i) Facts. Individual D is a participant in a group health plan. On March 1, 2020, Individual D received medical treatment for a condition covered under the plan, but a claim relating to the medical treatment was not submitted until April 1, 2021. Under the plan, claims must be submitted within 365 days of the participant’s receipt of the medical treatment. Was Individual D’s claim timely? (ii) Conclusion. Yes. For purposes of determining the 365-day period applicable to Individual D’s claim, the Outbreak Period is disregarded. Therefore, Individual D’s last day to submit a claim is 365 days after June 29, 2020, which is June 29, 2021, so Individual D’s claim was timely. Example 6 (Internal appeal— disability plan). (i) Facts. Individual E received a notification of an adverse benefit determination from Individual E’s disability plan on January 28, 2020. The notification advised Individual E that there are 180 days within which to file an appeal. What is Individual E’s appeal deadline? (ii) Conclusion. When determining the 180-day period within which Individual E’s appeal must be filed, the Outbreak Period is disregarded. Therefore, Individual E’s last day to submit an appeal is 148 days (180¥32 days following January 28 to March 1) after June 29, 2020, which is November 24, 2020. Example 7 (Internal appeal— employee pension benefit plan). (i) Facts. Individual F received a notice of adverse benefit determination from Individual F’s 401(k) plan on April 15, 2020. The notification advised Individual F that there are 60 days within which to file an appeal. What is Individual F’s appeal deadline? (ii) Conclusion. When determining the 60-day period within which Individual F’s appeal must be filed, the Outbreak Period is disregarded. Therefore, Individual F’s last day to submit an appeal is 60 days after June 29, 2020, which is August 28, 2020. VerDate Sep<11>2014 16:47 May 01, 2020 Jkt 250001 Signed at Washington, DC, this 28th day of April, 2020. Eugene Rutledge, Assistant Secretary, Employee Benefits Security Administration, Department of Labor. Sunita Lough, Deputy Commissioner for Services and Enforcement, Internal Revenue Service, Department of the Treasury. [FR Doc. 2020–09399 Filed 4–30–20; 11:15 am] BILLING CODE P 26355 Regulation and Controlling Regulatory Costs,’’ does not apply. List of Subjects in 32 CFR Part 199 Claims, Dental health, Health care, Health insurance, Individuals with disabilities, Mental health, Mental health parity, Military personnel. Accordingly, 32 CFR part 199 is amended as follows: PART 199—[AMENDED] 1. The authority citation for part 199 continues to read as follows: ■ DEPARTMENT OF DEFENSE Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55. Office of the Secretary § 199.8 32 CFR Part 199 [Amended] 2. Amend § 199.8 by removing paragraph (c)(6). ■ Double Coverage Office of the Secretary, Department of Defense (DoD). ACTION: Technical amendment. Dated: April 20, 2020. Aaron T. Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. This technical amendment is being published to correct an error that was codified in the Code of Federal Regulations (CFR) in 2003. A paragraph was inadvertently duplicated in 2003 and is now being removed. DATES: This technical amendment is effective May 4, 2020. FOR FURTHER INFORMATION CONTACT: Patricia Toppings, 571–372–0485. SUPPLEMENTARY INFORMATION: On April 30, 2003 (68 FR 23030–23034), the Department of Defense published a final rule titled ‘‘TRICARE Program; Eligibility and Payment Procedures for Civilian Health and Medical Program of the Uniformed Services Beneficiaries Age 65 and Over,’’ which amended 32 CFR part 199. On page 23032, an amendatory instruction requested to amend § 199.8 by ‘‘redesignating paragraph (c)(5) as (c)(6) and the second paragraph (c)(4) as (c)(5).’’ The wording of this amendatory instruction led to a codification error which is still present in the CFR. In 32 CFR 199.8, paragraphs (c)(5) and (c)(6) contain identical text. Only one of the paragraphs should remain in the CFR. Therefore, DoD is publishing this technical amendment to remove paragraph (c)(6) from 32 CFR 199.8. It has been determined that publication of this CFR amendment for public comment is impracticable, unnecessary, and contrary to public interest since it is correcting a technical error. This rule is not significant under Executive Order (E.O.) 12866, ‘‘Regulatory Planning and Review.’’ Therefore, E.O. 13771, ‘‘Reducing [FR Doc. 2020–08664 Filed 5–1–20; 8:45 am] AGENCY: SUMMARY: PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 BILLING CODE 5001–06–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG–2020–0084] RIN 1625–AA08 Special Local Regulation; Tred Avon River, Between Bellevue and Oxford, MD Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: The Coast Guard is establishing temporary special local regulations for certain waters of the Tred Avon River. This action is necessary to provide for the safety of life on these navigable waters located between Bellevue, MD, and Oxford, MD, during a swim event on June 6, 2020. This regulation prohibits persons and vessels from entering the regulated area unless authorized by the Captain of the Port Maryland-National Capital Region or the Coast Guard Patrol Commander. DATES: This rule is effective from 6:45 a.m. to 10:15 a.m. on June 6, 2020. ADDRESSES: To view documents mentioned in this preamble as being available in the docket, go to https:// www.regulations.gov, type USCG–2020– 0084 in the ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ Click on Open Docket Folder on the line associated with this rule. SUMMARY: E:\FR\FM\04MYR1.SGM 04MYR1

Agencies

[Federal Register Volume 85, Number 86 (Monday, May 4, 2020)]
[Rules and Regulations]
[Pages 26351-26355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09399]


=======================================================================
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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 54

DEPARTMENT OF LABOR

Employee Benefits Security Administration

29 CFR Parts 2560 and 2590


Extension of Certain Timeframes for Employee Benefit Plans, 
Participants, and Beneficiaries Affected by the COVID-19 Outbreak

AGENCY: Employee Benefits Security Administration, Department of Labor;

[[Page 26352]]

Internal Revenue Service, Department of the Treasury.

ACTION: Notification of relief; extension of timeframes.

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SUMMARY: This document announces the extension of certain timeframes 
under the Employee Retirement Income Security Act and the Internal 
Revenue Code for group health plans, disability and other welfare 
plans, pension plans, and participants and beneficiaries of these plans 
during the COVID-19 National Emergency.

DATES: May 4, 2020.

FOR FURTHER INFORMATION CONTACT: Department of Labor, Elizabeth 
Schumacher or David Sydlik, Office of Health Plan Standards and 
Compliance Assistance, Employee Benefits Security Administration, at 
202-693-8335, and Thomas Hindmarch, Office of Regulations and 
Interpretations, Employee Benefits Security Administration, at 202-693-
8500; or William Fischer, Department of the Treasury, Internal Revenue 
Service, Office of Chief Counsel (Employee Benefits, Exempt 
Organizations and Employment Taxes) at 202-317-5500.

SUPPLEMENTARY INFORMATION: 

I. Purpose

    On March 13, 2020, President Trump issued the Proclamation on 
Declaring a National Emergency Concerning the Novel Coronavirus Disease 
(COVID-19) Outbreak \1\ and by separate letter made a determination, 
under section 501(b) of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, 42 U.S.C. 5121 et seq., that a national 
emergency exists nationwide beginning March 1, 2020, as the result of 
the COVID-19 outbreak (the National Emergency).\2\ As a result of that 
determination, the Federal Emergency Management Agency (FEMA) issued 
emergency declarations for every state, territory, and possession of 
the United States.\3\
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    \1\ Available at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
    \2\ March 13, 2020 letter from President Trump to Secretaries of 
the Departments of Homeland Security, the Treasury, and Health and 
Human Services and the Administrator of the Federal Emergency 
Management Agency, available at https://www.whitehouse.gov/briefings-statements/letter-president-donald-j-trump-emergency-determination-stafford-act/.
    \3\ FEMA Release Number HQ-20-017-FactSheet available at https://www.fema.gov/news-release/2020/03/13/covid-19-emergency-declaration.
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    As a result of the National Emergency, participants and 
beneficiaries covered by group health plans, disability or other 
employee welfare benefit plans, and employee pension benefit plans may 
encounter problems in exercising their health coverage portability and 
continuation coverage rights, or in filing or perfecting their benefit 
claims. Recognizing the numerous challenges participants and 
beneficiaries already face as a result of the National Emergency, it is 
important that the Employee Benefits Security Administration, 
Department of Labor, Internal Revenue Service, and Department of the 
Treasury (the Agencies) take steps to minimize the possibility of 
individuals losing benefits because of a failure to comply with certain 
pre-established timeframes. Similarly, the Agencies recognize that 
affected group health plans may have difficulty in complying with 
certain notice obligations.
    Accordingly, under the authority of section 518 of the Employee 
Retirement Income Security Act of 1974 (ERISA) and section 7508A(b) of 
the Internal Revenue Code of 1986 (the Code), the Agencies are 
extending certain timeframes otherwise applicable to group health 
plans, disability and other welfare plans, pension plans, and their 
participants and beneficiaries under ERISA and the Code.\4\
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    \4\ ERISA section 518 and Code section 7508A(b) generally 
provide that, in the case of an employee benefit plan, sponsor, 
administrator, participant, beneficiary, or other person with 
respect to such a plan affected by a Presidentially declared 
disaster, notwithstanding any other provision of law, the 
Secretaries of Labor and the Treasury may prescribe (by notice or 
otherwise) a period of up to one year that may be disregarded in 
determining the date by which any action is required or permitted to 
be completed. Section 518 of ERISA and section 7508A(b) of the Code 
further provide that no plan shall be treated as failing to be 
operated in accordance with the terms of the plan solely as a result 
of complying with the postponement of a deadline under those 
sections.
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    The Agencies believe that such relief is immediately needed to 
preserve and protect the benefits of participants and beneficiaries in 
all employee benefit plans across the United States during the National 
Emergency. Accordingly, the Agencies have determined, pursuant to 
section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A), 
(B) and 553(d), that there is good cause for granting the relief 
provided by this document effective immediately upon publication, and 
that notice and public participation may result in undue delay and, 
therefore, be contrary to the public interest.\5\
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    \5\ Good cause exists for the same reasons underlying the 
issuance of the March 13, 2020 Proclamation on Declaring a National 
Emergency Concerning the Coronavirus Disease 2019 (COVID-19) 
Outbreak and the determination, under section 501(b) of the Robert 
T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 
5121, et seq., that a national emergency exists nationwide as a 
result of the COVID-19 pandemic, and the same reasons underlying the 
issuance of the January 31, 2020 declaration that a public health 
emergency exists under section 319 of the Public Health Service Act 
(PHS Act).
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    This document has been reviewed by the Department of Health and 
Human Services (HHS), which has advised the Agencies that HHS concurs 
with the relief specified in this document.\6\ HHS has advised the 
Agencies that HHS will exercise enforcement discretion to adopt a 
temporary policy of measured enforcement to extend similar timeframes 
otherwise applicable to non-Federal governmental group health plans and 
health insurance issuers offering coverage in connection with a group 
health plan, and their participants, beneficiaries and enrollees under 
applicable provisions of the Public Health Service Act (PHS Act). HHS 
has advised the Agencies that HHS encourages plan sponsors of non-
Federal governmental group health plans to provide relief similar to 
that specified in this document to participants and beneficiaries, and 
encourages states and health insurance issuers offering coverage in 
connection with a group health plan to enforce and operate, 
respectively, in a manner consistent with the relief provided in this 
document. HHS has also advised the Agencies that HHS will not consider 
a state to have failed to substantially enforce the applicable 
provisions of title XXVII of the PHS Act if the state takes such an 
approach.
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    \6\ Section 104 of the Title I of Health Insurance Portability 
and Accountability Act of 1996 (HIPAA) requires that the Secretaries 
of Labor, the Treasury, and Health and Human Services (the 
Departments) ensure through an interagency Memorandum of 
Understanding (MOU) that regulations, rulings, and interpretations 
issued by each of the Departments relating to the same matter over 
which two or more departments have jurisdiction, are administered so 
as to have the same effect at all times. Under section 104, the 
Departments, through the MOU, are to provide for coordination of 
policies relating to enforcement of the same requirements in order 
to have a coordinated enforcement strategy that avoids duplication 
of enforcement efforts and assigns priorities in enforcement. See 
section 104 of HIPAA and Memorandum of Understanding applicable to 
Title XXVII of the PHS Act, Part 7 of ERISA, and Chapter 100 of the 
Code, published at 64 FR 70164, December 15, 1999.
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    The relief provided by this document supplements other COVID-19 
guidance issued by the Agencies, which can be accessed on the internet 
at: https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/disaster-relief and https://www.irs.gov/coronavirus.

II. Background

    Title I of the Health Insurance Portability and Accountability Act 
of 1996 (HIPAA) provides portability of health coverage by, among other 
things,

[[Page 26353]]

requiring special enrollment rights into group health plans upon the 
loss of eligibility of coverage. ERISA section 701, Code section 9801, 
29 CFR 2590.701-6, 26 CFR 54.9801-6. Title X of the Consolidated 
Omnibus Budget Reconciliation Act of 1985 (COBRA) permits qualified 
beneficiaries who lose coverage under a group health plan to elect 
continuation health coverage. ERISA section 601, Code section 4980B, 26 
CFR 54.4980B-1. Section 503 of ERISA and 29 CFR 2560.503-1 require 
employee benefit plans subject to Title I of ERISA to establish and 
maintain reasonable procedures governing the determination and appeal 
of claims for benefits under the plan. Section 2719 of the PHS Act, 
incorporated into ERISA by ERISA section 715, and into the Code by Code 
section 9815, imposes additional rights and obligations with respect to 
internal claims and appeals and external review for non-grandfathered 
group health plans and health insurance issuers offering non-
grandfathered group or individual health insurance coverage. See also 
29 CFR 2590.715-2719 and 26 CFR 54.9815-2719. All of the foregoing 
provisions include timing requirements for certain acts in connection 
with employee benefit plans, some of which are being modified by this 
document.

A. Special Enrollment Timeframes

    In general, HIPAA requires a special enrollment period in certain 
circumstances, including when an employee or dependent loses 
eligibility for any group health plan or other health insurance 
coverage in which the employee or the employee's dependents were 
previously enrolled (including coverage under Medicaid and the 
Children's Health Insurance Program), and when a person becomes a 
dependent of an eligible employee by birth, marriage, adoption, or 
placement for adoption. ERISA section 701(f), Code section 9801(f), 29 
CFR 2590.701-6, and 26 CFR 54.9801-6. Generally, group health plans 
must allow such individuals to enroll in the group health plan if they 
are otherwise eligible and if enrollment is requested within 30 days of 
the occurrence of the event (or within 60 days, in the case of the 
special enrollment rights added by the Children's Health Insurance 
Program Reauthorization Act of 2009). ERISA section 701(f), Code 
section 9801(f), 29 CFR 2590.701-6, and 26 CFR 54.9801-6.

B. COBRA Timeframes

    The COBRA continuation coverage provisions generally provide a 
qualified beneficiary a period of at least 60 days to elect COBRA 
continuation coverage under a group health plan. ERISA section 605 and 
Code section 4980B(f)(5). Plans are required to allow payment of 
premiums in monthly installments, and plans cannot require payment of 
premiums before 45 days after the day of the initial COBRA election. 
ERISA section 602(3) and Code section 4980B(f)(2)(C). COBRA 
continuation coverage may be terminated for failure to pay premiums 
timely. ERISA section 602(2)(C) and Code section 4980B(f)(2)(B)(iii). 
Under the COBRA rules, a premium is considered paid timely if it is 
made not later than 30 days after the first day of the period for which 
payment is being made. ERISA section 602(2)(C), Code section 
4980B(f)(2)(B)(iii), and 26 CFR 54.4980B-8 Q&A-5(a). Notice 
requirements prescribe time periods for employers to notify the plan of 
certain qualifying events and for individuals to notify the plan of 
certain qualifying events or a determination of disability. Notice 
requirements also prescribe a time period for plans to notify qualified 
beneficiaries of their rights to elect COBRA continuation coverage. 
ERISA section 606, Code section 4980B(f)(6), and 29 CFR 2590.606-3.

C. Claims Procedure Timeframes

    Section 503 of ERISA and 29 CFR 2560.503-1, as well as section 2719 
of the PHS Act, incorporated into ERISA by ERISA section 715 and 29 CFR 
2590.715-2719, and into the Code by Code section 9815 and 26 CFR 
54.9815-2719, require ERISA-covered employee benefit plans and non-
grandfathered group health plans and health insurance issuers offering 
non-grandfathered group or individual health insurance coverage to 
establish and maintain a procedure governing the filing and initial 
disposition of benefit claims, and to provide claimants with a 
reasonable opportunity to appeal an adverse benefit determination to an 
appropriate named fiduciary. Plans may not have provisions that unduly 
inhibit or hamper the initiation or processing of claims for benefits. 
Further, group health plans and disability plans must provide claimants 
at least 180 days following receipt of an adverse benefit determination 
to appeal (60 days in the case of pension plans and other welfare 
benefit plans). 29 CFR 2560.503-1(h)(2)(i) and (h)(3)(i), 29 CFR 
2590.715-2719(b)(2)(ii)(C), and 26 CFR 54.9815-2719(b)(2)(ii)(C).

D. External Review Process Timeframes

    PHS Act section 2719, incorporated into ERISA by ERISA section 715 
and into the Code by Code section 9815, sets out standards for external 
review that apply to non-grandfathered group health plans and health 
insurance issuers offering non-grandfathered group or individual health 
insurance coverage and provides for either a state external review 
process or a Federal external review process. Standards for external 
review processes and timeframes for submitting claims to the 
independent reviewer for group health plans or health insurance issuers 
may vary depending on whether a plan uses a State or Federal external 
review process. For plans or issuers that use the Federal external 
review process, the process must allow at least four months after the 
receipt of a notice of an adverse benefit determination or final 
internal adverse benefit determination for a request for an external 
review to be filed. 29 CFR 2590.715-2719(d)(2)(i) and 26 CFR 54.9815-
2719(d)(2)(i). The Federal external review process also provides for a 
preliminary review of a request for external review. The regulation 
provides that if such request is not complete, the Federal external 
review process must provide for a notification that describes the 
information or materials needed to make the request complete, and the 
plan or issuer must allow a claimant to perfect the request for 
external review within the four-month filing period or within the 48-
hour period following the receipt of the notification, whichever is 
later. 29 CFR 2590.715-2719(d)(2)(ii)(B) and 26 CFR 54.9815-
2719(d)(2)(ii)(B).

III. Relief

A. Relief for Plan Participants, Beneficiaries, Qualified 
Beneficiaries, and Claimants

    Subject to the statutory duration limitation in ERISA section 518 
and Code section 7508A,\7\ all group health plans, disability and other 
employee welfare benefit plans, and employee pension benefit plans 
subject to ERISA or the Code must disregard the period from March 1, 
2020 until sixty (60) days after the announced end of the National 
Emergency or such other date announced by the Agencies in a future 
notification (the ``Outbreak Period'') \8\ for all plan participants, 
beneficiaries, qualified beneficiaries, or claimants wherever located 
in determining the following periods and dates--
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    \7\ See footnote 4, supra.
    \8\ To the extent there are different Outbreak Period end dates 
for different parts of the country, the Agencies will issue 
additional guidance regarding the application of the relief in this 
document.
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    (1) The 30-day period (or 60-day period, if applicable) to request 
special enrollment under ERISA section 701(f) and Code section 9801(f),

[[Page 26354]]

    (2) The 60-day election period for COBRA continuation coverage 
under ERISA section 605 and Code section 4980B(f)(5),\9\
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    \9\ The term ``election period'' is defined as ``the period 
which--(A) begins not later than the date on which coverage 
terminates under the plan by reason of a qualifying event, (B) is of 
at least 60 days' duration, and (C) ends not earlier than 60 days 
after the later of--(i) the date described in subparagraph (A), or 
(ii) in the case of any qualified beneficiary who receives notice 
under section 1166(a)(4) of this title, the date of such notice.'' 
29 U.S.C. 1165(a)(1), ERISA section 605(a)(1). See also Code section 
4980B(f)(5).
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    (3) The date for making COBRA premium payments pursuant to ERISA 
section 602(2)(C) and (3) and Code section 4980B(f)(2)(B)(iii) and 
(C),\10\
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    \10\ Under this provision, the group health plan must treat the 
COBRA premium payments as timely paid if paid in accordance with the 
periods and dates set forth in this document. Regarding coverage 
during the election period and before an election is made, see 26 
CFR 54.4980B-6, Q&A 3; during the period between the election and 
payment of the premium, see 26 CFR 54.4980B-8, Q&A 5(c).
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    (4) The date for individuals to notify the plan of a qualifying 
event or determination of disability under ERISA section 606(a)(3) and 
Code section 4980B(f)(6)(C),
    (5) The date within which individuals may file a benefit claim 
under the plan's claims procedure pursuant to 29 CFR 2560.503-1,
    (6) The date within which claimants may file an appeal of an 
adverse benefit determination under the plan's claims procedure 
pursuant to 29 CFR 2560.503-1(h),
    (7) The date within which claimants may file a request for an 
external review after receipt of an adverse benefit determination or 
final internal adverse benefit determination pursuant to 29 CFR 
2590.715-2719(d)(2)(i) and 26 CFR 54.9815-2719(d)(2)(i), and
    (8) The date within which a claimant may file information to 
perfect a request for external review upon a finding that the request 
was not complete pursuant to 29 CFR 2590.715-2719(d)(2)(ii) and 26 CFR 
54.9815-2719(d)(2)(ii).

B. Relief for Group Health Plans

    With respect to group health plans, and their sponsors and 
administrators, the Outbreak Period shall be disregarded when 
determining the date for providing a COBRA election notice under ERISA 
section 606(c) and Code section 4980B(f)(6)(D).

C. Later Extensions

    The Agencies will continue to monitor the effects of the Outbreak 
and may provide additional relief as warranted.

IV. Examples

    The following examples illustrate the timeframe for extensions 
required by this document. An assumed end date for the National 
Emergency was needed to make the examples clear and understandable. 
Accordingly, the Examples assume that the National Emergency ends on 
April 30, 2020, with the Outbreak Period ending on June 29, 2020 (the 
60th day after the end of the National Emergency). To the extent there 
are different Outbreak Period end dates for different parts of the 
country, the Agencies will issue additional guidance regarding the 
application of the relief in this document.
    Example 1 (Electing COBRA). (i) Facts. Individual A works for 
Employer X and participates in X's group health plan. Due to the 
National Emergency, Individual A experiences a qualifying event for 
COBRA purposes as a result of a reduction of hours below the hours 
necessary to meet the group health plan's eligibility requirements and 
has no other coverage. Individual A is provided a COBRA election notice 
on April 1, 2020. What is the deadline for A to elect COBRA?
    (ii) Conclusion. In Example 1, Individual A is eligible to elect 
COBRA coverage under Employer X's plan. The Outbreak Period is 
disregarded for purposes of determining Individual A's COBRA election 
period. The last day of Individual A's COBRA election period is 60 days 
after June 29, 2020, which is August 28, 2020.
    Example 2 (Special enrollment period). (i) Facts. Individual B is 
eligible for, but previously declined participation in, her employer-
sponsored group health plan. On March 31, 2020, Individual B gave birth 
and would like to enroll herself and the child into her employer's 
plan; however, open enrollment does not begin until November 15. When 
may Individual B exercise her special enrollment rights?
    (ii) Conclusion. In Example 2, the Outbreak Period is disregarded 
for purposes of determining Individual B's special enrollment period. 
Individual B and her child qualify for special enrollment into her 
employer's plan as early as the date of the child's birth. Individual B 
may exercise her special enrollment rights for herself and her child 
into her employer's plan until 30 days after June 29, 2020, which is 
July 29, 2020, provided that she pays the premiums for any period of 
coverage.
    Example 3 (COBRA premium payments). (i) Facts. On March 1, 2020, 
Individual C was receiving COBRA continuation coverage under a group 
health plan. More than 45 days had passed since Individual C had 
elected COBRA. Monthly premium payments are due by the first of the 
month. The plan does not permit qualified beneficiaries longer than the 
statutory 30-day grace period for making premium payments. Individual C 
made a timely February payment, but did not make the March payment or 
any subsequent payments during the Outbreak Period. As of July 1, 
Individual C has made no premium payments for March, April, May, or 
June. Does Individual C lose COBRA coverage, and if so for which 
month(s)?
    (ii) Conclusion. In this Example 3, the Outbreak Period is 
disregarded for purposes of determining whether monthly COBRA premium 
installment payments are timely. Premium payments made by 30 days after 
June 29, 2020, which is July 29, 2020, for March, April, May, and June 
2020, are timely, and Individual C is entitled to COBRA continuation 
coverage for these months if she timely makes payment. Under the terms 
of the COBRA statute, premium payments are timely if made within 30 
days from the date they are first due. In calculating the 30-day 
period, however, the Outbreak Period is disregarded, and payments for 
March, April, May, and June are all deemed to be timely if they are 
made within 30 days after the end of the Outbreak Period. Accordingly, 
premium payments for four months (i.e., March, April, May, and June) 
are all due by July 29, 2020. Individual C is eligible to receive 
coverage under the terms of the plan during this interim period even 
though some or all of Individual C's premium payments may not be 
received until July 29, 2020. Since the due dates for Individual C's 
premiums would be postponed and Individual C's payment for premiums 
would be retroactive during the initial COBRA election period, 
Individual C's insurer or plan may not deny coverage, and may make 
retroactive payments for benefits and services received by the 
participant during this time.
    Example 4 (COBRA premium payments). (i) Facts. Same facts as 
Example 3. By July 29, 2020, Individual C made a payment equal to two 
months' premiums. For how long does Individual C have COBRA 
continuation coverage?
    (ii) Conclusion. Individual C is entitled to COBRA continuation 
coverage for March and April of 2020, the two months for which timely 
premium payments were made, and Individual C is not entitled to COBRA 
continuation coverage for any month after April 2020. Benefits and 
services

[[Page 26355]]

provided by the group health plan (e.g., doctors' visits or filled 
prescriptions) that occurred on or before April 30, 2020 would be 
covered under the terms of the plan. The plan would not be obligated to 
cover benefits or services that occurred after April 2020.
    Example 5 (Claims for medical treatment under a group health plan). 
(i) Facts. Individual D is a participant in a group health plan. On 
March 1, 2020, Individual D received medical treatment for a condition 
covered under the plan, but a claim relating to the medical treatment 
was not submitted until April 1, 2021. Under the plan, claims must be 
submitted within 365 days of the participant's receipt of the medical 
treatment. Was Individual D's claim timely?
    (ii) Conclusion. Yes. For purposes of determining the 365-day 
period applicable to Individual D's claim, the Outbreak Period is 
disregarded. Therefore, Individual D's last day to submit a claim is 
365 days after June 29, 2020, which is June 29, 2021, so Individual D's 
claim was timely.
    Example 6 (Internal appeal--disability plan). (i) Facts. Individual 
E received a notification of an adverse benefit determination from 
Individual E's disability plan on January 28, 2020. The notification 
advised Individual E that there are 180 days within which to file an 
appeal. What is Individual E's appeal deadline?
    (ii) Conclusion. When determining the 180-day period within which 
Individual E's appeal must be filed, the Outbreak Period is 
disregarded. Therefore, Individual E's last day to submit an appeal is 
148 days (180-32 days following January 28 to March 1) after June 29, 
2020, which is November 24, 2020.
    Example 7 (Internal appeal--employee pension benefit plan). (i) 
Facts. Individual F received a notice of adverse benefit determination 
from Individual F's 401(k) plan on April 15, 2020. The notification 
advised Individual F that there are 60 days within which to file an 
appeal. What is Individual F's appeal deadline?
    (ii) Conclusion. When determining the 60-day period within which 
Individual F's appeal must be filed, the Outbreak Period is 
disregarded. Therefore, Individual F's last day to submit an appeal is 
60 days after June 29, 2020, which is August 28, 2020.

    Signed at Washington, DC, this 28th day of April, 2020.
Eugene Rutledge,
Assistant Secretary, Employee Benefits Security Administration, 
Department of Labor.
Sunita Lough,
Deputy Commissioner for Services and Enforcement, Internal Revenue 
Service, Department of the Treasury.
[FR Doc. 2020-09399 Filed 4-30-20; 11:15 am]
BILLING CODE P