The Presidentially Declared COVID-19 National Emergency is Over – Update

Update: We previously issued a client alert stating that the “outbreak period” will end on June 9, 2023.  We are issuing this client alert to reflect that the Department of Labor (“DOL”) and IRS have informally commented that the “outbreak period” will end on July 10, 2023.  This is the date that the “outbreak period” was originally expected to end when the Biden Administration announced in January that the national emergency and public health emergency declarations related to the COVID-19 pandemic would be ending on May 11, 2023.

On April 10, 2023, President Biden signed into law H.J. Res. 7, which terminated the President’s national emergency declaration under the National Emergencies Act (“NEA”) for COVID-19 effective immediately.  As explained in our earlier client alert here, the Biden Administration previously announced its intent to end the national emergency and public health emergency declarations related to the COVID-19 pandemic on May 11, 2023.  However, Congress had an accelerated timeline in mind.

Soon after the President’s announcement, Congress passed H.J. Res. 7, which terminated the presidentially declared national emergency under the NEA upon the President’s signature.  Notably, H.J. Res. 7 did not terminate the public health emergency declared by the Department of Health and Human Services (“HHS”), which presumably will still end on May 11, 2023, as originally announced by the Biden Administration.  There is other legislation (H.R. 382) currently pending before Congress that, if enacted, would also terminate the public health emergency declared by HHS immediately.  Additionally, H.J. Res. 7 did not terminate the national emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the “Stafford Act”).

This client alert recaps the implications on employer-sponsored group health plans of the end of the national emergencies under the NEA and the Stafford Act.

Even though the President’s national emergency declaration under the NEA for COVID-19 is over as of April 10, 2023, the COVID-19 “outbreak period” (for an explanation of the “outbreak period”, see our previous client alerts here and here) will not end 60 days later on June 9, 2023.  As mentioned in the update at the beginning of the client alert, the DOL and IRS have informally commented that the “outbreak period” will end on July 10, 2023, as originally expected.

This is because the “outbreak period” is tied to the national emergency declared under the Stafford Act, which remains in effect until FEMA ends the emergency incident period under the Stafford Act.  On February 9, 2023, FEMA announced that it will be closing all of the COVID-19 disaster declaration incident periods on May 11, 2023, effectively ending the national emergency under the Stafford Act on that date.  As a result, on July 11, 2023, any deadlines that are “paused” as a result of the national emergency under the Stafford Act, such as deadlines for COBRA elections, COBRA premium payments, and certain COBRA notices; HIPAA special enrollment requests; and the filing of claims and appeals, will start to run again.

Example:

Assume that a qualified beneficiary experienced a COBRA qualifying event on March 1, 2023.  Ordinarily, this qualified beneficiary would have a 60-day election period, or until April 30, 2023, to elect COBRA continuation coverage.  However, the group health plan must disregard the “outbreak period” under these circumstances until July 10, 2023.  As a result, the qualified beneficiary’s 60-day election period will not start to run until July 11, 2023, and the qualified beneficiary will have 60 days from July 11, 2023, or until September 9, 2023, to elect COBRA continuation coverage.

It appears to be reasonable to assume that “outbreak period” will end on July 10, 2023 based on the DOL’s and IRS’s informal comments.  However, we are hopeful that the DOL and IRS will issue formal guidance soon.  Nonetheless, plan sponsors should contact their third-party administrators (for self-funded plans) and insurers (for fully insured plans) immediately to ensure that they are prepared for the end of the various emergency declarations and the “outbreak period.”  If you have any questions about the end of the COVID-19 emergency declarations, please contact a member of the Miller Johnson Employee Benefits and Executive Compensation Practice Group.