DOL and Treasury Extend Certain ERISA-Related Deadlines for Helene and Milton-Affected Counties | Damat Law Group, Chartered

On November 8, the Departments of Labor and Treasury (“Ministries”) issued guidance extending certain deadlines for retirement, health, and benefit plans in response to Hurricane Helene, Tropical Storm Helene, and Hurricane Milton. On November 14, 2024, the Department of Health and Human Services (“HHS”) issued a similar Bulletin.

The departments and HHS have issued three pieces of “guidance”:

• EBSA Disaster Assistance Notice 2024-01 (“Notice”) – Extends the time period for plans to provide ERISA-required notices, including SPDs, HCPs, and benefit determinations, as long as there is a good faith effort to provide the documents as quickly as administratively practicable.

• Final Regulations (“Final Rule”) – delays/suspends participant COBRA, HIPAA special enrollment, and claim/objection deadlines, as well as the deadline for the plan administrator to file COBRA election notice.

• FAQ for Participants and Beneficiaries – help participants affected by hurricanes/tropical storms understand their rights under ERISA. These FAQs actually only clarify and/or reiterate previous guidance.

• Insurance Standards Bulletin Series – encourages non-federal government plans and health insurance companies that offer group or individual health insurance coverage to extend participants’ deadlines and provide non-enforcement assistance.

The extensions/suspensions contained in both the Announcement and the Final Rule are effective during the following periods (“Disaster Period”). Typically, these extended/suspended periods will be charged and restarted at the end of the Disaster Period.

• Disaster Areas in Florida
  • Hurricane Helene – September 23, 2024 – May 1, 2025
  • Hurricane Milton – October 5, 2024 – May 1, 2025
• Disaster Areas in Georgia (Hurricane Helene) – September 24, 2024 to May 1, 2025
• Disaster Areas in North Carolina, South Carolina, and Virginia (Hurricane Helene and Tropical Storm Helene) – September 25, 2024 through May 1, 2025
• Disaster Areas in Tennessee (Tropical Storm Helene) – September 26, 2024 through May 1, 2025

Notification

The proclamation announces DOL’s authority to adopt these extensions based on ERISA section 518, which allows the Secretary to postpone deadlines under ERISA due to a Presidentially declared disaster. The Secretary has previously used this authority for various hurricanes, and the guidance here largely reflects that guidance.

The Notice provides accommodations for all disclosures and notices required under Title I of ERISA during the Disaster Period (except those addressed in the Final Rule) and states that a plan will not violate ERISA as long as such disclosures and notices are provided “as soon as administratively practicable under the circumstances.” .” The notice goes on to state that good faith delivery involves the use of electronic means of communication where the plan fiduciary reasonably believes that participants have effective access, including email, text messaging, and persistent access websites.

For example, relief applies to:

• SPDs and SMMs
• Form 5500 and M-1
• Procedural requirements for plan loans and distributions – To qualify for relief, plan administrators must act in good faith and correct deficiencies with respect to requirements imposed under Title I of ERISA as quickly as administratively practicable.
• Participant contributions and loan refunds – Plan administrators and other providers who are unable to meet applicable deadlines for transmitting amounts to plans must act reasonably, prudently, and in the best interests of employees to comply with these rules as quickly as administratively practicable.
• Requests and objection periods

In addition, the Notice includes “General ERISA Fiduciary Compliance Guidance,” which primarily encourages plan fiduciaries to make reasonable accommodations to prevent loss of benefits or undue delay and sets forth DOL’s general approach to enforcement for affected plans and service providers.

Final Rule

The Final Rule suspends the application of certain deadlines that otherwise apply to health and welfare plan participants (and to group health plans, plan sponsors, and plan administrators) during the Disaster Period. In other words, these periods are not valid during the Disaster Period and will not start running again until the Disaster Period ends.

The extensions apply to all plans subject to ERISA and the Internal Revenue Code. HHS also “encourages” nonfederal government plans and health insurance companies that offer group or individual health insurance coverage to extend participant deadlines and provide sanction-free assistance.

Schedule Admin Assistance

The Final Rule suspends the 14-day period (44 days where the employer is the plan administrator) for a plan administrator to provide COBRA election notice to qualified beneficiaries.

Participant Assistance

The following deadlines do not apply to Disaster Period participants and do not begin to run until the Disaster Period ends:

• HIPAA Special Enrollment Period – 30-day (in some cases 60-day) deadline to request enrollment in a group health plan following a special enrollment event (e.g., birth, adoption or foster placement, marriage, loss of other health insurance, or eligibility for government premium assistance subsidy) .
• COBRA Qualified Activity and Disability Extension Notices – 60-day period within which qualified beneficiaries must notify the plan of certain qualifying events (e.g., divorce or legal separation, a dependent child ceasing to be a dependent under the terms of the plan) or disability determination.
• COBRA Selection – 60-day deadline to elect COBRA continuation coverage.
• COBRA Premium Payments – 45-day (for initial payment) and 30-day (for subsequent payments) periods for timely payment of COBRA premiums.
• Benefit Claims and Objections – The plan-covered deadline (under the terms of the plan) by which participants can request benefits and the 180-day (for group health plans) and 60-day (for other benefit plans) deadlines for appealing a negative benefit determination.
• External Review – 4 months (for the federal external review process; this period may differ for the state external review process) within which the plaintiff must request an external review.
• Perfecting the External Review Request – a period of 4 months (or 48 hours after receipt of notification of the incomplete claim, if later) for the claimant to complete an incomplete external review request.

Participants must have resided, lived, or worked in one of the disaster areas during the hurricane or tropical storm or be covered by a plan directly affected. A plan is directly affected by Hurricane Helene, Tropical Storm Helene, or Hurricane Milton if the principal place of business of the employer maintaining the plan is the principal place of business of employers that employ more than 50% of the active participants covered by the plan. The plan’s or plan administrator’s office or the office of the primary recordkeeper serving the plan was located in one of the disaster areas during the hurricane or tropical storm.