By J.J. Conway
As we slowly transition our lives into a post-pandemic world, the benefits world is transitioning, too. On March 20, 2020, President Donald Trump issued a National Emergency Order which was renewed by President Biden. Related to the National Emergency Order, the Secretary of Health and Human Services made a public health emergency declaration and issued additional public health orders affecting ERISA, Medicare, and Medicaid plans. The Emergency Order was renewed again on March 1, 2022, and is currently set to expire on April 16, 2022, unless renewed again.
Critical to the benefits world, the deadlines for filing claims or appeals for denied claims were extended by way of a little used provision of ERISA that empowers the U.S. Secretary of Labor to adjust and extend a benefits plan's due dates in times of national emergency.
ERISA Section 518 provides that:
"In the case of a pension or other employee benefit plan, or any sponsor, administrator, participant, beneficiary, or other person with respect to such plan, affected by . . . . a public health emergency declared by the Secretary of Health and Human Services pursuant to section 247d of title 42, the Secretary may, notwithstanding any other provision of law, prescribe, by notice or otherwise, a period of up to 1 year which may be disregarded in determining the date by which any action is required or permitted to be completed under this chapter. (29 U.S.C. §1148)"
In practical terms, ERISA plan participants (as well as those covered by ACA-compliant healthcare contracts as well as Medicare and Medicaid enrollees) have been able to extend the due dates for claims and appeals for up to one year or sixty days after the expiration of the National Emergency Order, whichever comes first.
This had a beneficial effect on those who were struggling to secure proof of their claims by way of securing copies of medical records, filing paperwork supportive of an administrative appeal, or otherwise perfecting a claim for benefits. Under the rules applicable to benefit plans, the U.S. Department of Labor suspended administrative due dates for internal benefit appeals, second level appeals, and external reviews, the dates of which are set forth in various federal regulations.
What does the eventual expiration of the National Emergency Order mean for the employee benefit claimant? It is a "good news" and a "neutral news" situation.
First, in the "neutral news" scenario, if not extended again the time for filing claims and appeals is back to business as usual. A typical benefit appeal for health and welfare claims is now due 180 days after the notification that a claim for benefits was denied by an employee's benefit plan or insurer. Secondary levels of appeal may have shorter deadlines, as do claims for retirement benefits. That said, the regulatory due dates will return and will require claimants to exhaust their internal remedies if their plans so require.
Under the "good news" scenario, there is currently a class of employee benefit participants who may have thought the time to pursue their claim had passed, but those claims are still timely. For example, if a claimant had a claim denied on May 1, 2021, under the existing rules, an appeal would have been required by November 1, 2021. That same claimant may still be able to file a timely appeal on May 1, 2022 an additional sixth months after the due date. For those whose claims have been denied in 2022 and are within the 180-day period currently, they will likely be able to secure an extra 60 days for the review and filing of an appeal or claim for benefits.
Like most of the experiences during the pandemic, this is a rare situation that provides an employee or healthcare claimant another chance to resolve an important benefit claim that they may have thought was long past its due date. Like the transition back into the office, the administrative claims process will soon be returning, but this opportunity should not be missed.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and founder of J.J. Conway Law in Royal Oak.
