HIPAA Special Enrollment during the COVID-19 Emergency

Here’s a HIPAA-related question from one employer.

Q. How long are the extended HIPAA special enrollment periods during the COVID-19 emergency?

A. In response to the COVID-19 emergency, the Department of Labor and IRS issued a joint rule extending the HIPAA special enrollment periods for group health plans that are subject to ERISA. (Health and Human Services has announced that non-federal governmental health plans are encouraged but not required to adopt the extended special enrollment periods.)

As background, 30-day special enrollment periods may be triggered when eligible employees or dependents lose eligibility for other health plan coverage, or when an eligible employee acquires a dependent through birth, marriage, adoption, or placement for adoption. Sixty-day special enrollment periods may be triggered by changes in eligibility for Medicaid or state premium assistance under the Children’s Health Insurance Program.

The rule extends the 30- and 60-day HIPAA special enrollment periods by requiring plans to disregard the COVID-19 “outbreak period,” which started March 1, 2020, and ends 60 days after the end of the COVID-19 national emergency or a different date announced by the agencies. At the time the final rule was issued, it wasn’t possible to predict the end of the outbreak period, but the rule’s preamble suggests that the end date could be different for different parts of the country.

An example in the final rule assumes, hypothetically, that the COVID-19 national emergency ended on April 30, 2020, with the outbreak period ending 60 days later, on June 29. Thus, if an employee experienced a 30-day special enrollment event on March 31, 2020, the employee’s special enrollment period ends on July 29, 2020 — 30 days after the end of the hypothetical outbreak period.

The rule doesn’t address the situation of a special enrollment event before March 1 (that is, before the start of the outbreak period). However, a similar extension issued in response to Hurricane Katrina indicated that any days prior to the disregarded period would count against the special enrollment period. For example, if 14 days of a 30-day special enrollment period had elapsed before the disregarded period started, then only 16 days would be added to the end of the disregarded period.

It’s likely that some special enrollment periods had already ended under the normally applicable rules before the extension was announced on April 28. Although the rule doesn’t specifically address the issue, it appears that plans must re-open enrollment periods that expired during the period from March 1 to April 28.

However, it does not seem necessary to restart the 30- or 60-day period. Rather, only days remaining in the original 30- or 60-day period as of March 1 would be added after the outbreak period. Because this aspect of the COVID-19 extension may be difficult to administer, plans and plan sponsors should be proactive and review these situations with legal counsel.