President Biden extends national emergency declaration due to COVID-19

On February 24, 2021, President Biden extended the national emergency declaration due to COVID-19. This action is separate from, and should not be confused with, the public health emergency (PHE) declared by the Secretary of Health and Human Services, as there are different timeframes and requirements associated with each emergency.

The president’s declaration extends the national emergency. Under ERISA and the Internal Revenue Code, the Department of Labor (DOL) and Internal Revenue Service (IRS) are permitted to suspend benefit plan deadlines when a national emergency is declared, but only for one year, unless extended by the president. Under that authority, the DOL and IRS issued a Joint Notice (May 4, 2020) which required that plans suspend benefit plan deadlines. The Joint Notice was effective as of March 1, 2020.

The national emergency declaration and subsequent Notice 2021-01 makes clear that the prior COVID-19 extensions will be extended again for an unspecified time of up to one year. Notice 2021-01 requires that group health plans, disability and other employee welfare benefit plans subject to ERISA or the Internal Revenue Code to disregard several important deadlines that normally apply to plans, including the: 

• Deadline to elect COBRA;
• Deadline to pay COBRA premiums;
• Deadline to elect HIPAA special enrollment;
• Deadline to file claims, appeals and requests for external review; and
• Deadline for plans to provide COBRA election notice.

Benefit plan deadlines that are subject to the relief will have the applicable deadline suspended or disregarded until the earlier of 1 year from the date they were first eligible for relief, or 60 days after the announced end of the president’s national emergency declaration (the end of the Outbreak Period).

As a practical matter, this means each individual has their own timetable for plan action. Under Notice 2021-01, the suspension relief previously granted to individuals in the Joint Notice will continue to be in effect. However, in no case will a suspension period exceed 1 year from the date of the original deadline.

This action also allows federal agencies to continue measures to combat and respond to COVID-19, such as providing HHS authority under Section 1135 of the Social Security Act to waive or modify certain requirements under Medicare, Medicaid, CHIP and HIPAA.

However, the president’s action does not, in any way, impact the many requirements and flexibilities related to the HHS-declared public health emergency (PHE) – the HHS-declared PHE currently lasts through April 20, 2021. The Acting Secretary previously sent a letter to the nation’s governors suggesting that HHS expects to extend the PHE. 

• Under federal law, an HHS-declared PHE and any subsequent extension may only last for 90-day increments, we may expect an extension closer to the April 20th date until the Secretary determines that the PHE no longer exists.
• This action also does not impact any state or local PHE or other declaration made by governors, mayors, legislatures or other state and local authorities.

For more information on areas covered under the president’s national emergency extension, contact your broker or UnitedHealthcare representative.