ERISA[1]-governed health and welfare benefit plan sponsors and plan participants impacted by Hurricane Helene, Tropical Storm Helene, and Hurricane Milton now have some relief from, and additional time to comply with, certain plan deadlines and requirements, according to a recent Department of Labor (DOL) Employee Benefits Security Administration (EBSA) news release.
Acknowledging the challenges faced by plan sponsor employers (as well as plan participants, and their families) impacted by these natural disasters, EBSA, along with the Department of the Treasury and Internal Revenue Service (IRS), issued a joint notice (accessed here), granting relief and extending certain timeframes for:
- COBRA timeframes: The 60-day period for qualified beneficiaries to elect COBRA coverage, the date for making COBRA premium payments, and the date for individuals to notify the plan of a qualifying event or disability determination.
- HIPAA special enrollment rights timeframes: The 30-day or 60-day period, as applicable, to request HIPAA special enrollment.
- Benefit claims and appeals timeframes: The date within which individuals may file a benefit claim under the plan’s claims procedure, and the date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure.
- External review process timeframes: 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, and 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.
Areas Impacted
The relief outlined in this recent guidance applies to designated disaster areas in the following states:
- Florida
- Georgia
- North Carolina
- South Carolina
- Tennessee
- Virginia
Relief applies to individuals who are directly affected by Hurricane Helene, Tropical Storm Helene, or Hurricane Milton.
Plan administrators are also granted additional time to provide a COBRA election notice if they were directly affected by the natural disasters.
"Directly affected" means:
- An individual who resided, lived, or worked in one of the designated “disaster areas” (see below) at the time of the hurricane or tropical storm, or their coverage was under an employee benefit plan that was directly affected, and
- An employee benefit plan is directly affected if any of the following was located in one of the disaster areas at time of the hurricane/tropical storm:
- the principal place of business of the employer that maintains the plan;
- the principal place of business of employers that employ more than 50 % of the active participants covered by the plan;
- the office of the plan or the plan administrator; or
- the office of the primary recordkeeper serving the plan
“Disaster areas” means the counties or tribal areas in Florida, Georgia, North Carolina, South Carolina, Tennessee, and Virginia that have been or are later designated as disaster areas eligible for Individual Assistance by the Federal Emergency Management Agency (FEMA) because of the devastation caused by Hurricane Helene, Tropical Storm Helene, or Hurricane Milton.
Relief Period
These plan-related deadlines are extended by disregarding a “Relief Period” that starts on varying dates in September or October 2024 (depending on location) and ends May 1, 2025.
See the table below outlining the Relief Period timeframes for the varying locations of the designated disaster areas:
|
State of Disaster Area
|
Natural Disaster
|
Start Date of Relief Period
|
End Date of Relief Period
|
|
Florida
|
Hurricane Helene
|
September 23, 2024
|
May 1, 2025
|
|
Georgia
|
Hurricane Helene
|
September 24, 2024
|
May 1, 2025
|
|
North Carolina
|
Hurricane Helene or Tropical Storm Helene
|
September 25, 2024
|
May 1, 2025
|
|
South Carolina
|
Hurricane Helene or Tropical Storm Helene
|
September 25, 2024
|
May 1, 2025
|
|
Virginia
|
Hurricane Helene or Tropical Storm Helene
|
September 25, 2024
|
May 1, 2025
|
|
Tennessee
|
Tropical Storm Helene
|
September 26, 2025
|
May 1, 2025
|
|
Florida
|
Hurricane Milton
|
October 5, 2024
|
May 1, 2025
|
Illustrative Examples
The joint notice provides several helpful examples outlined below to illustrate the Relief Period being disregarded for purposes of plan deadlines for individuals directly affected by these natural disasters:
|
Plan Deadline
|
General Timeframe
|
Facts
|
Conclusion
|
|
COBRA Election
|
60 days
|
Employee A in North Carolina is provided a COBRA election notice on December 1, 2024.
|
The last day of this employee’s COBRA election period is 60 days after May 1, 2025, which is June 30, 2025.
|
|
HIPAA Special Enrollment Period
|
30 days
|
Employee B in South Carolina gives birth on October 31, 2024, and would like to enroll herself and the child into her employer’s plan.
|
This employee may exercise her special enrollment rights for herself and her child until 30 days after May 1, 2025, which is May 31, 2025, provided that she pays her share of the premiums for any period of coverage.
|
|
COBRA premium payments
|
30 day grace period
|
Former employee C in Georgia did not make COBRA premium payments for October, November, December in 2024, and also for January, February, March, April, or May in 2025.
|
Premium payments made by 30 days after May 1, 2025, which is May 31, 2025, for October, November, December, January, February, March, April, and May, are timely, and this former employee is entitled to COBRA continuation coverage for these months.
|
|
COBRA premium payments
|
30 day grace period
|
Former employee D in Georgia made a payment equal to two months’ COBRA premiums by May 31, 2025.
|
Former employee D is entitled to COBRA continuation coverage for October and November of 2024, the two months for which this employee made timely premium payments. This individual is not entitled to COBRA continuation coverage for any month after November 2024.
|
|
Internal appeal
|
180 days
|
Employee E in Florida
received a notification of an adverse benefit determination from their group disability plan on August 28, 2024 and wants to appeal. The notification advised Employee E of their right to file an appeal within 180 days.
|
Employee E’s last day to submit an appeal is 154 days (180—26 days following August 28 to September 23) after May 1, 2025, which is October 2, 2025.
|
Additional EBSA Guidance
EBSA also issued additional guidance with the following resources:
- EBSA Disaster Relief Notice 2024-01 detailing compliance assistance guidance in connection with retirement plan loans, participant contributions, loan repayments, blackout notices, Form 5500 and Form M-1 filing relief[2].
- Notably, in this document, EBSA states that “the guiding principle for plans and plan fiduciaries must be to act reasonably, prudently, and in the interest of the covered workers and their families who rely on their health, retirement, and other employee benefit plans for their physical and economic wellbeing. Plan fiduciaries should make reasonable accommodations to prevent the loss of benefits or undue delay in benefits payments in such cases and should attempt to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established timeframes.”
- Additionally, EBSA confirms here that its “approach to enforcement will emphasize compliance assistance and include grace periods and other relief where appropriate, including when physical disruption to a plan or service provider’s principal place of business makes compliance with preestablished timeframes for certain claims decisions or disclosures impossible.”
- Frequently Asked Questions on health and retirement benefit plan issues for those affected by these natural disasters to help plan participants, beneficiaries, plan sponsors and employers understand their rights and responsibilities under ERISA.
Relief for Non-Federal Governmental Plans
The Centers for Medicare & Medicaid Services (CMS) released its own guidance (accessed here) encouraging non-federal governmental plans to extend otherwise applicable timeframes under the Public Health Service Act for participants, beneficiaries, enrollees, qualified beneficiaries, and claimants affected by these natural disasters, in a manner consistent with the relief specified in the EBSA joint notice.
Additionally, CMS will exercise enforcement discretion for non-federal governmental plans, extending relief for the timing of required notices and disclosures, consistent with the Relief Periods outlined above for ERISA-governed plans, as long as the plan “acts in good faith” to provide the required notice and/or disclosure “as soon as administratively practicable under the circumstances.”
CMS clarified here that “good faith” includes “use of electronic alternative means of communicating with participants, beneficiaries, and enrollees who the plan or issuer reasonably believes have effective access to electronic means of communication, including email, text messages, and continuous access websites.”
Employer Plan Sponsor Takeaway
Health and welfare plan sponsors and plan participants directly affected by these recent natural disasters can hopefully breathe a sigh of relief as result of this recent guidance by the federal agencies granting relief and extension of timeframes to comply with certain plan deadlines and requirements.
Employer plan sponsors are advised to confirm with their plan service providers (including their external COBRA administration vendors and carriers/third-party administrators, as applicable) that they are complying with the Relief Period and extension timeframes guidance, outlined in this EBSA joint notice.
Federal agencies will continue to monitor the effects of Hurricane Helene, Tropical Storm Helene, and Hurricane Milton, and may provide additional relief as warranted.
Risk Strategies will continue to follow developments closely here and provide updates when available. Contact us directly at benefits@risk-strategies.com.
[1] ERISA means the Employee Retirement Income Security Act of 1974.
[2] Form M-1 filings required for multiple employer welfare arrangements (MEWAs) and certain entities claiming exception (ECEs).
