FAQ: How does the recent extension of certain timeframes for employee benefit plans impact HIPAA Special Enrollment requests?

The guidance issued in the DOL and the Treasury’s joint final rule “Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak” provides that all group health plans subject to ERISA or the Code must disregard the period from March 1, 2020, until 60 days after the end of the National Emergency (known as the “Outbreak Period”) for certain deadlines, including the 30-day (or 60-day, if applicable) deadline to request a special enrollment under HIPAA. In other words, any plan participant who experiences a HIPAA special enrollment event that occurs during the Outbreak Period need not count the 30-day election period (60-day election period for Medicaid and CHIP related events) until the completion of the Outbreak Period, as illustrated in the following example:

Mary has a baby on March 31, 2020. For purposes of this example, let’s say the National Emergency is proclaimed to be over on May 31, 2020 (as such, the Outbreak Period ends July 30 — 60 days after the end of the National Emergency). In this scenario, Mary may request enrollment for the baby (and herself and spouse, if applicable) in the group health plan up until August 29, 2020, which is 30 days after the end of the Outbreak Period. It is important to note that coverage would be retroactive back to the event date.

This temporary extension is a good opportunity to review the nuances and requirements of HIPAA special enrollment rights (SERs). As background, HIPAA requires group health plans to provide SERs when there is a loss of eligibility for group health coverage (or health insurance coverage including Medicaid or CHIP); becoming eligible for state premium assistance subsidy; and the acquisition of a new spouse or dependent by marriage, birth, adoption or placement for adoption. Also required by HIPAA, an SER must allow for at least a 30-day special enrollment period for requests due to loss of group health plan coverage or with an acquisition of a new spouse or dependent; and at least a 60-day election period for enrollment requests due to loss of Medicaid/CHIP or becoming eligible for a state premium assistance subsidy.

Often overlooked, HIPAA SERs are only applicable to enrollment requests. For example, a request to drop coverage due to marriage is not a HIPAA SER, and a request to drop coverage due to becoming eligible for Medicaid or CHIP is not a HIPAA SER (but both are permitted IRS mid-year election change events). Further, election changes due to a HIPAA SER are applied prospectively with the exception of birth, adoption or placement for adoption, which can be applied retroactively to the date of when the birth, adoption or placement occurs (as mentioned in the example). In addition, coverage due to marriage must be effective no later than the first day of the first month beginning after the enrollment request is received.

Finally, employers that offer health coverage to domestic parties should be aware that loss of coverage SERs protect an employee’s right to add a domestic party due to the relevant loss of coverage event. However, SERs do not grant employees the right to enroll a newly qualified domestic partner outside of the employer’s open enrollment period, as attaining domestic partnership status is not comparable to marriage for purposes of triggering a HIPAA SER.