82_FR_55731 82 FR 55507 - Extension of Certain Time Frames for Employee Benefit Plans, Participants, and Beneficiaries Affected by Hurricane Maria

82 FR 55507 - Extension of Certain Time Frames for Employee Benefit Plans, Participants, and Beneficiaries Affected by Hurricane Maria

DEPARTMENT OF LABOR
Employee Benefits Security Administration
DEPARTMENT OF THE TREASURY
Internal Revenue Service

Federal Register Volume 82, Issue 224 (November 22, 2017)

Page Range55507-55509
FR Document2017-25332

This document announces the extension of certain time frames under the Employee Retirement Income Security Act and the Internal Revenue Code for group health plans, disability and other welfare plans, pension plans, participants and beneficiaries of these plans, and group health insurance issuers directly affected by Hurricane Maria.

Federal Register, Volume 82 Issue 224 (Wednesday, November 22, 2017)
[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Rules and Regulations]
[Pages 55507-55509]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-25332]



[[Page 55507]]

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DEPARTMENT OF LABOR

Employee Benefits Security Administration

29 CFR Parts 2560 and 2590

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 54


Extension of Certain Time Frames for Employee Benefit Plans, 
Participants, and Beneficiaries Affected by Hurricane Maria

AGENCY: Employee Benefits Security Administration, Department of Labor; 
Internal Revenue Service, Department of the Treasury.

ACTION: Extension of time frames.

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SUMMARY: This document announces the extension of certain time frames 
under the Employee Retirement Income Security Act and the Internal 
Revenue Code for group health plans, disability and other welfare 
plans, pension plans, participants and beneficiaries of these plans, 
and group health insurance issuers directly affected by Hurricane 
Maria.

DATES: November 22, 2017.

FOR FURTHER INFORMATION CONTACT: Elizabeth Schumacher or Suzanne 
Adelman, Employee Benefits Security Administration, Department of 
Labor, at 202-693-8335; or Karen Levin, Internal Revenue Service, 
Department of the Treasury, at 202-317-5500.

SUPPLEMENTARY INFORMATION:

I. Purpose

    As a result of Hurricane Maria, participants and beneficiaries 
covered by group health plans, disability or other welfare plans, and 
pension plans may encounter problems in exercising their health 
coverage portability and continuation coverage rights, or in filing or 
perfecting their benefit claims. Recognizing the numerous challenges 
already facing affected participants and beneficiaries, it is important 
that plans and the Employee Benefits Security Administration, 
Department of Labor and Internal Revenue Service, Department of the 
Treasury (the Agencies) take steps to minimize the possibility of 
individuals losing benefits because of a failure to comply with certain 
pre-established time frames. Similarly, the Agencies recognize that 
affected group health plans may have difficulty in complying with 
certain notice obligations.
    Accordingly, under the authority of section 518 of the Employee 
Retirement Income Security Act of 1974 (ERISA), and section 7508A of 
the Internal Revenue Code of 1986 (the Code), the Agencies are 
extending certain time frames otherwise applicable to group health 
plans, disability and other welfare plans, pension plans, and their 
participants and beneficiaries under ERISA and the Code.\1\
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    \1\ ERISA section 518 and Code section 7508A generally provide 
that, in the case of an employee benefit plan, sponsor, 
administrator, participant, beneficiary, or other person with 
respect to such a plan affected by a Presidentially declared 
disaster, notwithstanding any other provision of law, the 
Secretaries of Labor and the Treasury may prescribe (by notice or 
otherwise) a period of up to one year that may be disregarded in 
determining the date by which any action is required or permitted to 
be completed. Section 518 of ERISA and section 7508A of the Code 
further provide that no plan shall be treated as failing to be 
operated in accordance with the terms of the plan solely as a result 
of complying with the postponement of a deadline under those 
sections.
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    The Agencies believe that such relief is immediately needed to 
preserve and protect the benefits of participants and beneficiaries in 
affected plans. Accordingly, the Agencies have determined, pursuant to 
section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b) and 
(d), that there is good cause for granting the relief provided by this 
notice effective immediately upon publication and that notice and 
public participation may result in undue delay and, therefore, be 
contrary to the public interest.
    This document has been reviewed by the Department of Health and 
Human Services (HHS), which concurs with the relief. HHS encourages 
plan sponsors of nonfederal governmental group health plans to provide 
the relief specified in this guidance. HHS also encourages States, and 
health insurance issuers, to enforce and operate, respectively, in a 
manner consistent with the relief provided in this guidance.\2\
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    \2\ Section 104 of Title I of Health Insurance Portability and 
Accountability Act of 1996 (HIPAA) requires that the Secretaries of 
Labor, the Treasury, and Health and Human Services (the Departments) 
ensure through an interagency Memorandum of Understanding (MOU) that 
regulations, rulings, and interpretations issued by each of the 
Departments relating to the same matter over which two or more 
departments have jurisdiction, are administered so as to have the 
same effect at all times. Under section 104, the Departments, 
through the MOU, are to provide for coordination of policies 
relating to enforcement of the same requirements in order to have a 
coordinated enforcement strategy that avoids duplication of 
enforcement efforts and assigns priorities in enforcement. See 
section 104 of HIPAA and Memorandum of Understanding applicable to 
Title XXVII of the PHS Act, Part 7 of ERISA, and Chapter 100 of the 
Code, published at 64 FR 70164, December 15, 1999.
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    The relief provided by this Notice supplements other disaster 
relief guidance, which can be accessed on the Internet at: https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/disaster-relief and https://www.irs.gov/newsroom/tax-relief-in-disaster-situations.

II. Background

    Title I of the Health Insurance Portability and Accountability Act 
of 1996 (HIPAA) provides portability of group health coverage by, among 
other things, requiring special enrollment rights. ERISA section 701, 
Code section 9801, 29 CFR 2590.701-6, 26 CFR 54.9801-6. Title X of the 
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) permits 
qualified beneficiaries who lose coverage under a group health plan to 
elect continuation health coverage. ERISA section 601, Code section 
4980B, 26 CFR 54.4980B-1. Section 503 of ERISA and 29 CFR 2560.503-1 
require employee benefit plans subject to Title I of ERISA to establish 
and maintain reasonable procedures governing the determination and 
appeal of claims for benefits under the plan. Section 2719 of the 
Public Health Service Act (PHS Act), incorporated into ERISA by ERISA 
section 715 and into the Code by Code section 9815, imposes additional 
rights and obligations with respect to claims, appeals, and external 
review for nongrandfathered group health plans and health insurance 
issuers offering nongrandfathered coverage. See also 29 CFR 2590.715-
2719 and 26 CFR 54.9815-2719. All of the foregoing provisions include 
timing requirements for certain acts in connection with employee 
benefit plans, some of which are being modified by this notice.

A. Special Enrollment Time Frames

    In general, the HIPAA special enrollment provisions require that a 
special enrollment period must be provided in certain circumstance 
including circumstances in which an employee or dependent loses 
eligibility for any group health plan or other health insurance 
coverage in which the employee or the employee's dependents were 
previously enrolled (including coverage under Medicaid and the 
Children's Health Insurance Program), and upon certain life events such 
as when a person becomes a dependent of an eligible employee by birth, 
marriage, or adoption. ERISA section 701(f), Code section 9801(f), 29 
CFR 2590.701-6, and 26 CFR 54.9801-6. Generally, group health plans 
must allow such individuals to enroll in the group health plan if they 
are otherwise eligible and if enrollment is requested within 30 days of 
the occurrence of the event (or

[[Page 55508]]

within 60 days, in the case of the special enrollment rights added by 
the Children's Health Insurance Program Reauthorization Act of 2009). 
ERISA section 701(f), Code section 9801(f), 29 CFR 2590.701-6, and 26 
CFR 54.9801-6.

B. COBRA Time Frames

    The COBRA continuation coverage provisions generally provide a 
qualified beneficiary a period of at least 60 days to elect COBRA 
continuation coverage under a group health plan. ERISA section 605 and 
Code section 4980B(f)(5). Plans are required to allow payment of 
premiums in monthly installments, and plans cannot require payment of 
premiums before 45 days after the day of the initial COBRA election. 
ERISA section 602(3) and Code section 4980B(f)(2)(C). COBRA 
continuation coverage may be terminated for failure to pay premiums 
timely. ERISA section 602(2)(C) and Code section 4980B(f)(2)(B)(iii). 
Under the COBRA rules, a premium is considered paid timely if it is 
made not later than 30 days after the first day of the period for which 
payment is being made. ERISA section 602(2)(C), Code section 
4980B(f)(2)(B)(iii), and 26 CFR 54.4980B-8 Q&A-5(a). Notice 
requirements prescribe time periods for employers to notify the plan of 
certain qualifying events and for individuals to notify the plan of 
certain qualifying events or a determination of disability; notice 
requirements also prescribe a time period for plans to notify qualified 
beneficiaries of their rights to elect COBRA continuation coverage. 
ERISA section 606, Code section 4980B(f)(6), and 29 CFR 2590.606-3.

C. Claims Procedure Time Frames

    Section 503 of ERISA and 29 CFR 2560.503-1, as well as section 2719 
of the PHS Act, incorporated into ERISA by ERISA section 715 and into 
the Code by Code section 9815, 29 CFR 2590.715-2719, and 26 CFR 
54.9815-2719, require ERISA-covered employee benefit plans and 
nongrandfathered group health plans and health insurance issuers to 
establish and maintain a procedure governing the filing and initial 
disposition of benefit claims, and to provide claimants with a 
reasonable opportunity to appeal an adverse benefit determination to an 
appropriate named fiduciary. Plans may not have provisions that unduly 
inhibit or hamper the initiation or processing of claims for benefits. 
Further, group health plans and disability plans must provide claimants 
at least 180 days following receipt of an adverse benefit determination 
to appeal (60 days in the case of pension plans and other welfare 
benefit plans). 29 CFR 2560.503-1(h)(2)(i), 29 CFR 2560.503-1(h)(3)(i), 
29 CFR 2590.715-2719(b)(2)(ii)(C), and 26 CFR 54.9815-
2719(b)(2)(ii)(C).

D. External Review Process Time Frames

    PHS Act section 2719, incorporated into ERISA by ERISA section 715 
and into the Code by Code section 9815, sets out standards for external 
review that apply to nongrandfathered group health plans and health 
coverage and provides for either a State external review process or a 
Federal external review process. Standards for external review 
processes and timeframes for submitting claims to the independent 
reviewer for group health plans or health insurance issuers may vary 
depending on whether a plan uses a State external review process or a 
Federal external review process. For plans or issuers that use the 
Federal external review process, the process must allow at least four 
months after the receipt of a notice of an adverse benefit 
determination or final internal adverse benefit determination for a 
request for an external review to be filed. 29 CFR 2590.715-
2719(d)(2)(i) and 26 CFR 54.9815-2719(d)(2)(i). The Federal external 
review process also provides for a preliminary review of a request for 
external review. The regulation provides that if such request is not 
complete, the Federal process must provide for a notification that 
describes the information or materials needed to make the request 
complete, and the plan or issuer must allow a claimant to perfect the 
request for external review within the four-month filing period or 
within the 48 hour period following the receipt of the notification, 
whichever is later. 29 CFR 2590.715-2719(d)(2)(ii)(B) and 26 CFR 
54.9815-2719(d)(2)(ii)(B).

III. Relief

A. Relief for Affected Plan Participants, Beneficiaries, Qualified 
Beneficiaries, and Claimants

    With respect to plan participants, beneficiaries, qualified 
beneficiaries, or claimants directly affected by Hurricane Maria (as 
defined in paragraph III.C.(1)), group health plans, disability and 
other welfare plans, pension plans, and health insurance issuers 
offering coverage in connection with a group health plan must disregard 
the period from September 17, 2017 through March 16, 2018 for such plan 
participants, beneficiaries, qualified beneficiaries, or claimants 
located in Puerto Rico, and must disregard the period from September 
16, 2017 through March 15, 2018 for such plan participants, 
beneficiaries, qualified beneficiaries, or claimants located in the 
United States Virgin Islands, when determining any of the following 
time periods and dates--
    (1) The 30-day period (or 60-day period, if applicable) to request 
special enrollment under ERISA section 701(f) and Code section 9801(f),
    (2) The 60-day election period for COBRA continuation coverage 
under ERISA section 605 and Code section 4980B(f)(5),\3\
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    \3\ The term ``election period'' is defined as ``the period 
which--(A) begins not later than the date on which coverage 
terminates under the plan by reason of a qualifying event, (B) is of 
at least 60 days' duration, and (C) ends not earlier than 60 days 
after the later of--(i) the date described in subparagraph (A), or 
(ii) in the case of any qualified beneficiary who receives notice 
under section 1166(4) of this title, the date of such notice.'' See 
ERISA section 605(a)(1). See also Code section 4980B(f)(5).
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    (3) The date for making COBRA premium payments pursuant to ERISA 
section 602(2)(C) and (3) and Code section 4980B(f)(2)(B)(iii) and (C),
    (4) The date for individuals to notify the plan of a qualifying 
event or determination of disability under ERISA section 606(a)(3) and 
Code section 4980B(f)(6)(C),
    (5) The date within which individuals may file a benefit claim 
under the plan's claims procedure pursuant to 29 CFR 2560.503-1,
    (6) The date within which claimants may file an appeal of an 
adverse benefit determination under the plan's claims procedure 
pursuant to 29 CFR 2560.503-1(h),
    (7) 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 pursuant to 29 CFR 
2590.715-2719(d)(2)(i) and 26 CFR 54.9815-2719(d)(2)(i), and
    (8) 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 pursuant to 29 CFR 2590.715-2719(d)(2)(ii) and 26 CFR 
54.9815-2719(d)(2)(ii).

B. Relief for Group Health Plans

    With respect to group health plans, and their sponsors and 
administrators, that are directly affected by Hurricane Maria (as 
defined in paragraph III.C.(3)), the period from September 17, 2017 
through March 16, 2018 for those located in Puerto Rico, and the period 
from September 16, 2017 through March 15, 2018 for those located in the 
United States Virgin Islands, shall be disregarded when determining the 
date for providing a COBRA election notice under ERISA section 606(c) 
and Code section 4980B(f)(6)(D).

[[Page 55509]]

C. Definitions

    For purposes of this notice--
    (1) A participant, beneficiary, qualified beneficiary, or claimant 
directly affected by Hurricane Maria means an individual who resided, 
lived, or worked in one of the disaster areas (as defined in paragraph 
III.C.(2)) at the time of the hurricane, or whose employee benefit plan 
was directly affected (as defined in paragraph III.C.(3)), but solely 
with respect to that employee benefit plan.
    (2) The term ``disaster areas'' means the counties in Puerto Rico 
and the counties and county equivalents in the United States Virgin 
Islands that have been or are later designated as disaster areas 
eligible for Individual Assistance by the Federal Emergency Management 
Agency because of the devastation caused by Hurricane Maria.
    (3) An employee benefit plan is directly affected by Hurricane 
Maria if the principal place of business of the employer that maintains 
the plan (in the case of a single-employer plan, determined 
disregarding the rules of section 414(b) and (c) of the Code); the 
principal place of business of employers that employ more than 50 
percent of the active participants covered by the plan (in the case of 
a plan covering employees of more than one employer, determined 
disregarding the rules of section 414(b) and (c) of the Code); the 
office of the plan or the plan administrator; or the relevant office of 
the primary recordkeeper serving the plan was located in one of the 
disaster areas (as defined in paragraph III.C.(2)) at the time of the 
hurricane.

D. Later Extensions

    The Agencies will continue to monitor the effects of Hurricane 
Maria and may provide additional relief as warranted.

IV. Examples

    The following examples illustrate the timeframe for extensions 
required by this notice. In each example, assume that the individual 
described is directly affected by the hurricane.
    Example 1 (Electing COBRA). (i) Facts. Individual A works for 
Employer X in Puerto Rico and participates in X's group health plan. On 
September 20, 2017, the day Hurricane Maria made landfall, X's business 
is destroyed, and the plan ceases to function. A has no other coverage. 
Employer Y is part of the same controlled group as X and continues to 
operate and sponsor a group health plan. A is provided a COBRA election 
notice on December 1, 2017. What is the deadline for A to elect COBRA?
    (ii) Conclusion. In this Example 1, A is eligible to elect COBRA 
coverage under Employer Y's plan because Employer Y is in the same 
controlled group as Employer X.\4\ The period from September 17, 2017 
through March 16, 2018 is disregarded for purposes of determining A's 
COBRA election period. The last day of A's COBRA election period is 60 
days after March 16, 2018, which is May 15, 2018.
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    \4\ Under the COBRA rules, the COBRA period continues even after 
the end of the plan, if the employer continues to provide any group 
health plan to any employee. Code section 4980B(f)(2)(B)(ii) and 
ERISA 602(2)(B) . For purposes of COBRA, ``employer'' includes the 
person for whom services are performed and any other person that is 
a member of a group described in Code section 414(b), (c), (m), or 
(o). 26 CFR 54.4980B-2, Q&A 2.
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    Example 2 (Special enrollment period). (i) Facts. Individual B 
resides in the United States Virgin Islands. B is eligible for, but 
previously declined participation in, her employer-sponsored group 
health plan. On October 31, 2017, B gives birth and would like to 
enroll herself and the child into her employer's plan; however, open 
enrollment does not begin until November 15.
    (ii) Conclusion. In this Example 2, the period from September 16, 
2017 through March 15, 2018 is disregarded for purposes of determining 
B's special enrollment period. B may special enroll herself and her 
child into her employer's plan as early as the date of the child's 
birth, and the last day B may special enroll herself and her child into 
her employer's plan is 30 days after March 15, 2018, which is April 14, 
2018.
    Example 3 (COBRA premium payments). (i) Facts. Individual C resides 
in Puerto Rico. Before the hurricane, C was receiving COBRA 
continuation coverage under a group health plan. More than 45 days had 
passed since C had elected COBRA. Monthly premium payments are due by 
the first of the month. The plan does not permit qualified 
beneficiaries longer than the statutory 30-day grace period for making 
premium payments. C made a timely September payment, but did not make 
an October payment before the hurricane.
    (ii) Conclusion. In this Example 3, the period from September 17, 
2017 through March 16, 2018 is disregarded for purposes of making 
monthly COBRA premium installment payments. Premium payments made by 30 
days after March 16, 2018, which would be April 15, 2018 for October, 
November, and December of 2017, and January, February, and March of 
2018, are timely, and C is entitled to COBRA continuation coverage for 
these months.
    Example 4 (COBRA premium payments). (i) Facts. Same facts as 
Example 3. By April 15, 2018, a payment equal to two months' premium 
has been made for C.
    (ii) Conclusion. C is entitled to COBRA continuation coverage for 
October and November 2017, the two months for which timely premium 
payments were made, and C is not entitled to COBRA continuation 
coverage for any month after November 2017.
    Example 5 (Claims for medical treatment under a group health plan). 
(i) Facts. Individual D resides in the United States Virgin Islands and 
is a participant in a group health plan. On October 1, 2017, D received 
medical treatment for a condition covered under the plan, but a claim 
relating to the medical treatment was not submitted until later. Under 
the plan, claims must be submitted within 365 days of the participant's 
receipt of the medical treatment.
    (ii) Conclusion. For purposes of determining the 365-day period 
applicable to D's claim, the period from October 1, 2017 through March 
15, 2018 is disregarded. Therefore, D's last day to submit a claim is 
365 days after March 15, 2018, which is March 15, 2019.
    Example 6 (Internal appeal). (i) Facts. Individual E resides in 
Puerto Rico. E received a notification of an adverse benefit 
determination from E's disability plan on August 15, 2017. The 
notification advised E that there are 180 days within which to file an 
appeal.
    (ii) Conclusion. When determining the 180-day period within which 
E's appeal must be filed, the period from September 17, 2017 through 
March 16, 2018 is disregarded. Therefore, E's last day to submit an 
appeal is 148 days after March 16, 2018, which is August 11, 2018.

    Signed at Washington, DC, this 17th day of November, 2017.
Jeanne Klinefelter Wilson,
Deputy Assistant Secretary, Employee Benefits Security Administration, 
Department of Labor.
    Signed this 16th day of November, 2017.
Kirsten Wielobob,
Deputy Commissioner for Services and Enforcement, Internal Revenue 
Service, Department of the Treasury.
[FR Doc. 2017-25332 Filed 11-21-17; 8:45 am]
 BILLING CODE 4510-29-P



                                                          Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations                                           55507

                                             DEPARTMENT OF LABOR                                        Accordingly, under the authority of                   Internet at: https://www.dol.gov/
                                                                                                     section 518 of the Employee Retirement                   agencies/ebsa/employers-and-advisers/
                                             Employee Benefits Security                              Income Security Act of 1974 (ERISA),                     plan-administration-and-compliance/
                                             Administration                                          and section 7508A of the Internal                        disaster-relief and https://www.irs.gov/
                                                                                                     Revenue Code of 1986 (the Code), the                     newsroom/tax-relief-in-disaster-
                                             29 CFR Parts 2560 and 2590                              Agencies are extending certain time                      situations.
                                                                                                     frames otherwise applicable to group
                                                                                                                                                              II. Background
                                             DEPARTMENT OF THE TREASURY                              health plans, disability and other
                                                                                                     welfare plans, pension plans, and their                     Title I of the Health Insurance
                                             Internal Revenue Service                                participants and beneficiaries under                     Portability and Accountability Act of
                                                                                                     ERISA and the Code.1                                     1996 (HIPAA) provides portability of
                                             26 CFR Part 54                                             The Agencies believe that such relief                 group health coverage by, among other
                                                                                                     is immediately needed to preserve and                    things, requiring special enrollment
                                             Extension of Certain Time Frames for                    protect the benefits of participants and                 rights. ERISA section 701, Code section
                                             Employee Benefit Plans, Participants,                   beneficiaries in affected plans.                         9801, 29 CFR 2590.701–6, 26 CFR
                                             and Beneficiaries Affected by                           Accordingly, the Agencies have                           54.9801–6. Title X of the Consolidated
                                             Hurricane Maria                                         determined, pursuant to section 553 of                   Omnibus Budget Reconciliation Act of
                                                                                                     the Administrative Procedure Act, 5                      1985 (COBRA) permits qualified
                                             AGENCY:  Employee Benefits Security                     U.S.C. 553(b) and (d), that there is good                beneficiaries who lose coverage under a
                                             Administration, Department of Labor;                    cause for granting the relief provided by                group health plan to elect continuation
                                             Internal Revenue Service, Department of                 this notice effective immediately upon                   health coverage. ERISA section 601,
                                             the Treasury.                                           publication and that notice and public                   Code section 4980B, 26 CFR 54.4980B–
                                             ACTION: Extension of time frames.                       participation may result in undue delay                  1. Section 503 of ERISA and 29 CFR
                                                                                                     and, therefore, be contrary to the public                2560.503–1 require employee benefit
                                             SUMMARY:   This document announces the                  interest.                                                plans subject to Title I of ERISA to
                                             extension of certain time frames under                     This document has been reviewed by                    establish and maintain reasonable
                                             the Employee Retirement Income                          the Department of Health and Human                       procedures governing the determination
                                             Security Act and the Internal Revenue                   Services (HHS), which concurs with the                   and appeal of claims for benefits under
                                             Code for group health plans, disability                 relief. HHS encourages plan sponsors of                  the plan. Section 2719 of the Public
                                             and other welfare plans, pension plans,                 nonfederal governmental group health                     Health Service Act (PHS Act),
                                             participants and beneficiaries of these                 plans to provide the relief specified in                 incorporated into ERISA by ERISA
                                             plans, and group health insurance                       this guidance. HHS also encourages                       section 715 and into the Code by Code
                                             issuers directly affected by Hurricane                  States, and health insurance issuers, to                 section 9815, imposes additional rights
                                             Maria.                                                  enforce and operate, respectively, in a                  and obligations with respect to claims,
                                             DATES:   November 22, 2017.                             manner consistent with the relief                        appeals, and external review for
                                                                                                     provided in this guidance.2                              nongrandfathered group health plans
                                             FOR FURTHER INFORMATION CONTACT:
                                                                                                        The relief provided by this Notice                    and health insurance issuers offering
                                             Elizabeth Schumacher or Suzanne                         supplements other disaster relief                        nongrandfathered coverage. See also 29
                                             Adelman, Employee Benefits Security                     guidance, which can be accessed on the                   CFR 2590.715–2719 and 26 CFR
                                             Administration, Department of Labor, at                                                                          54.9815–2719. All of the foregoing
                                             202–693–8335; or Karen Levin, Internal                    1 ERISA section 518 and Code section 7508A
                                                                                                                                                              provisions include timing requirements
                                             Revenue Service, Department of the                      generally provide that, in the case of an employee       for certain acts in connection with
                                             Treasury, at 202–317–5500.                              benefit plan, sponsor, administrator, participant,
                                                                                                                                                              employee benefit plans, some of which
                                                                                                     beneficiary, or other person with respect to such a
                                             SUPPLEMENTARY INFORMATION:                              plan affected by a Presidentially declared disaster,     are being modified by this notice.
                                                                                                     notwithstanding any other provision of law, the
                                             I. Purpose                                              Secretaries of Labor and the Treasury may prescribe      A. Special Enrollment Time Frames
                                                As a result of Hurricane Maria,                      (by notice or otherwise) a period of up to one year         In general, the HIPAA special
                                                                                                     that may be disregarded in determining the date by
                                             participants and beneficiaries covered                  which any action is required or permitted to be          enrollment provisions require that a
                                             by group health plans, disability or                    completed. Section 518 of ERISA and section              special enrollment period must be
                                             other welfare plans, and pension plans                  7508A of the Code further provide that no plan           provided in certain circumstance
                                                                                                     shall be treated as failing to be operated in
                                             may encounter problems in exercising                    accordance with the terms of the plan solely as a
                                                                                                                                                              including circumstances in which an
                                             their health coverage portability and                   result of complying with the postponement of a           employee or dependent loses eligibility
                                             continuation coverage rights, or in filing              deadline under those sections.                           for any group health plan or other
                                             or perfecting their benefit claims.                       2 Section 104 of Title I of Health Insurance
                                                                                                                                                              health insurance coverage in which the
                                             Recognizing the numerous challenges                     Portability and Accountability Act of 1996 (HIPAA)       employee or the employee’s dependents
                                                                                                     requires that the Secretaries of Labor, the Treasury,
                                             already facing affected participants and                and Health and Human Services (the Departments)          were previously enrolled (including
                                             beneficiaries, it is important that plans               ensure through an interagency Memorandum of              coverage under Medicaid and the
                                             and the Employee Benefits Security                      Understanding (MOU) that regulations, rulings, and       Children’s Health Insurance Program),
                                                                                                     interpretations issued by each of the Departments
                                             Administration, Department of Labor                     relating to the same matter over which two or more
                                                                                                                                                              and upon certain life events such as
                                             and Internal Revenue Service,                           departments have jurisdiction, are administered so       when a person becomes a dependent of
                                             Department of the Treasury (the                         as to have the same effect at all times. Under section   an eligible employee by birth, marriage,
                                             Agencies) take steps to minimize the                    104, the Departments, through the MOU, are to            or adoption. ERISA section 701(f), Code
                                                                                                     provide for coordination of policies relating to
                                             possibility of individuals losing benefits                                                                       section 9801(f), 29 CFR 2590.701–6, and
ethrower on DSK3G9T082PROD with RULES




                                                                                                     enforcement of the same requirements in order to
                                             because of a failure to comply with                     have a coordinated enforcement strategy that avoids      26 CFR 54.9801–6. Generally, group
                                             certain pre-established time frames.                    duplication of enforcement efforts and assigns           health plans must allow such
                                             Similarly, the Agencies recognize that                  priorities in enforcement. See section 104 of HIPAA      individuals to enroll in the group health
                                                                                                     and Memorandum of Understanding applicable to
                                             affected group health plans may have                    Title XXVII of the PHS Act, Part 7 of ERISA, and
                                                                                                                                                              plan if they are otherwise eligible and
                                             difficulty in complying with certain                    Chapter 100 of the Code, published at 64 FR 70164,       if enrollment is requested within 30
                                             notice obligations.                                     December 15, 1999.                                       days of the occurrence of the event (or


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                                             55508        Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations

                                             within 60 days, in the case of the special              case of pension plans and other welfare               beneficiaries, qualified beneficiaries, or
                                             enrollment rights added by the                          benefit plans). 29 CFR 2560.503–                      claimants located in the United States
                                             Children’s Health Insurance Program                     1(h)(2)(i), 29 CFR 2560.503–1(h)(3)(i), 29            Virgin Islands, when determining any of
                                             Reauthorization Act of 2009). ERISA                     CFR 2590.715–2719(b)(2)(ii)(C), and 26                the following time periods and dates—
                                             section 701(f), Code section 9801(f), 29                CFR 54.9815–2719(b)(2)(ii)(C).                           (1) The 30-day period (or 60-day
                                             CFR 2590.701–6, and 26 CFR 54.9801–                                                                           period, if applicable) to request special
                                             6.                                                      D. External Review Process Time
                                                                                                                                                           enrollment under ERISA section 701(f)
                                                                                                     Frames
                                             B. COBRA Time Frames                                                                                          and Code section 9801(f),
                                                                                                        PHS Act section 2719, incorporated                    (2) The 60-day election period for
                                                The COBRA continuation coverage                      into ERISA by ERISA section 715 and                   COBRA continuation coverage under
                                             provisions generally provide a qualified                into the Code by Code section 9815, sets              ERISA section 605 and Code section
                                             beneficiary a period of at least 60 days                out standards for external review that                4980B(f)(5),3
                                             to elect COBRA continuation coverage                    apply to nongrandfathered group health                   (3) The date for making COBRA
                                             under a group health plan. ERISA                        plans and health coverage and provides                premium payments pursuant to ERISA
                                             section 605 and Code section                            for either a State external review process            section 602(2)(C) and (3) and Code
                                             4980B(f)(5). Plans are required to allow                or a Federal external review process.                 section 4980B(f)(2)(B)(iii) and (C),
                                             payment of premiums in monthly                          Standards for external review processes                  (4) The date for individuals to notify
                                             installments, and plans cannot require                  and timeframes for submitting claims to               the plan of a qualifying event or
                                             payment of premiums before 45 days                      the independent reviewer for group                    determination of disability under ERISA
                                             after the day of the initial COBRA                      health plans or health insurance issuers              section 606(a)(3) and Code section
                                             election. ERISA section 602(3) and Code                 may vary depending on whether a plan                  4980B(f)(6)(C),
                                             section 4980B(f)(2)(C). COBRA                           uses a State external review process or                  (5) The date within which individuals
                                             continuation coverage may be                            a Federal external review process. For                may file a benefit claim under the plan’s
                                             terminated for failure to pay premiums                  plans or issuers that use the Federal                 claims procedure pursuant to 29 CFR
                                             timely. ERISA section 602(2)(C) and                     external review process, the process                  2560.503–1,
                                             Code section 4980B(f)(2)(B)(iii). Under                 must allow at least four months after the                (6) The date within which claimants
                                             the COBRA rules, a premium is                           receipt of a notice of an adverse benefit             may file an appeal of an adverse benefit
                                             considered paid timely if it is made not                determination or final internal adverse               determination under the plan’s claims
                                             later than 30 days after the first day of               benefit determination for a request for               procedure pursuant to 29 CFR
                                             the period for which payment is being                   an external review to be filed. 29 CFR                2560.503–1(h),
                                             made. ERISA section 602(2)(C), Code                     2590.715–2719(d)(2)(i) and 26 CFR                        (7) The date within which claimants
                                             section 4980B(f)(2)(B)(iii), and 26 CFR                 54.9815–2719(d)(2)(i). The Federal                    may file a request for an external review
                                             54.4980B–8 Q&A–5(a). Notice                             external review process also provides                 after receipt of an adverse benefit
                                             requirements prescribe time periods for                 for a preliminary review of a request for             determination or final internal adverse
                                             employers to notify the plan of certain                 external review. The regulation provides              benefit determination pursuant to 29
                                             qualifying events and for individuals to                that if such request is not complete, the             CFR 2590.715–2719(d)(2)(i) and 26 CFR
                                             notify the plan of certain qualifying                   Federal process must provide for a                    54.9815–2719(d)(2)(i), and
                                             events or a determination of disability;                notification that describes the                          (8) The date within which a claimant
                                             notice requirements also prescribe a                    information or materials needed to make
                                             time period for plans to notify qualified                                                                     may file information to perfect a request
                                                                                                     the request complete, and the plan or                 for external review upon a finding that
                                             beneficiaries of their rights to elect                  issuer must allow a claimant to perfect
                                             COBRA continuation coverage. ERISA                                                                            the request was not complete pursuant
                                                                                                     the request for external review within                to 29 CFR 2590.715–2719(d)(2)(ii) and
                                             section 606, Code section 4980B(f)(6),                  the four-month filing period or within
                                             and 29 CFR 2590.606–3.                                                                                        26 CFR 54.9815–2719(d)(2)(ii).
                                                                                                     the 48 hour period following the receipt
                                             C. Claims Procedure Time Frames                         of the notification, whichever is later. 29           B. Relief for Group Health Plans
                                                Section 503 of ERISA and 29 CFR                      CFR 2590.715–2719(d)(2)(ii)(B) and 26                    With respect to group health plans,
                                             2560.503–1, as well as section 2719 of                  CFR 54.9815–2719(d)(2)(ii)(B).                        and their sponsors and administrators,
                                             the PHS Act, incorporated into ERISA                    III. Relief                                           that are directly affected by Hurricane
                                             by ERISA section 715 and into the Code                                                                        Maria (as defined in paragraph III.C.(3)),
                                             by Code section 9815, 29 CFR 2590.715–                  A. Relief for Affected Plan Participants,             the period from September 17, 2017
                                             2719, and 26 CFR 54.9815–2719, require                  Beneficiaries, Qualified Beneficiaries,               through March 16, 2018 for those
                                             ERISA-covered employee benefit plans                    and Claimants                                         located in Puerto Rico, and the period
                                             and nongrandfathered group health                         With respect to plan participants,                  from September 16, 2017 through March
                                             plans and health insurance issuers to                   beneficiaries, qualified beneficiaries, or            15, 2018 for those located in the United
                                             establish and maintain a procedure                      claimants directly affected by Hurricane              States Virgin Islands, shall be
                                             governing the filing and initial                        Maria (as defined in paragraph III.C.(1)),            disregarded when determining the date
                                             disposition of benefit claims, and to                   group health plans, disability and other              for providing a COBRA election notice
                                             provide claimants with a reasonable                     welfare plans, pension plans, and health              under ERISA section 606(c) and Code
                                             opportunity to appeal an adverse benefit                insurance issuers offering coverage in                section 4980B(f)(6)(D).
                                             determination to an appropriate named                   connection with a group health plan
                                                                                                                                                              3 The term ‘‘election period’’ is defined as ‘‘the
                                             fiduciary. Plans may not have                           must disregard the period from
                                                                                                                                                           period which—(A) begins not later than the date on
                                             provisions that unduly inhibit or                       September 17, 2017 through March 16,
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                                                                                                                                                           which coverage terminates under the plan by reason
                                             hamper the initiation or processing of                  2018 for such plan participants,                      of a qualifying event, (B) is of at least 60 days’
                                             claims for benefits. Further, group                     beneficiaries, qualified beneficiaries, or            duration, and (C) ends not earlier than 60 days after
                                             health plans and disability plans must                  claimants located in Puerto Rico, and                 the later of—(i) the date described in subparagraph
                                                                                                                                                           (A), or (ii) in the case of any qualified beneficiary
                                             provide claimants at least 180 days                     must disregard the period from                        who receives notice under section 1166(4) of this
                                             following receipt of an adverse benefit                 September 16, 2017 through March 15,                  title, the date of such notice.’’ See ERISA section
                                             determination to appeal (60 days in the                 2018 for such plan participants,                      605(a)(1). See also Code section 4980B(f)(5).



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                                                          Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Rules and Regulations                                              55509

                                             C. Definitions                                             (ii) Conclusion. In this Example 1, A              timely, and C is entitled to COBRA
                                                For purposes of this notice—                         is eligible to elect COBRA coverage                   continuation coverage for these months.
                                                (1) A participant, beneficiary,                      under Employer Y’s plan because                          Example 4 (COBRA premium
                                             qualified beneficiary, or claimant                      Employer Y is in the same controlled                  payments). (i) Facts. Same facts as
                                             directly affected by Hurricane Maria                    group as Employer X.4 The period from                 Example 3. By April 15, 2018, a
                                             means an individual who resided, lived,                 September 17, 2017 through March 16,
                                                                                                                                                           payment equal to two months’ premium
                                             or worked in one of the disaster areas                  2018 is disregarded for purposes of
                                                                                                                                                           has been made for C.
                                             (as defined in paragraph III.C.(2)) at the              determining A’s COBRA election
                                             time of the hurricane, or whose                         period. The last day of A’s COBRA                        (ii) Conclusion. C is entitled to
                                             employee benefit plan was directly                      election period is 60 days after March                COBRA continuation coverage for
                                             affected (as defined in paragraph                       16, 2018, which is May 15, 2018.                      October and November 2017, the two
                                             III.C.(3)), but solely with respect to that                Example 2 (Special enrollment                      months for which timely premium
                                             employee benefit plan.                                  period). (i) Facts. Individual B resides in           payments were made, and C is not
                                                (2) The term ‘‘disaster areas’’ means                the United States Virgin Islands. B is                entitled to COBRA continuation
                                             the counties in Puerto Rico and the                     eligible for, but previously declined                 coverage for any month after November
                                             counties and county equivalents in the                  participation in, her employer-                       2017.
                                             United States Virgin Islands that have                  sponsored group health plan. On                          Example 5 (Claims for medical
                                             been or are later designated as disaster                October 31, 2017, B gives birth and
                                                                                                                                                           treatment under a group health plan). (i)
                                             areas eligible for Individual Assistance                would like to enroll herself and the
                                                                                                                                                           Facts. Individual D resides in the United
                                             by the Federal Emergency Management                     child into her employer’s plan;
                                             Agency because of the devastation                       however, open enrollment does not                     States Virgin Islands and is a participant
                                             caused by Hurricane Maria.                              begin until November 15.                              in a group health plan. On October 1,
                                                (3) An employee benefit plan is                         (ii) Conclusion. In this Example 2, the            2017, D received medical treatment for
                                             directly affected by Hurricane Maria if                 period from September 16, 2017 through                a condition covered under the plan, but
                                             the principal place of business of the                  March 15, 2018 is disregarded for                     a claim relating to the medical treatment
                                             employer that maintains the plan (in the                purposes of determining B’s special                   was not submitted until later. Under the
                                             case of a single-employer plan,                         enrollment period. B may special enroll               plan, claims must be submitted within
                                             determined disregarding the rules of                    herself and her child into her                        365 days of the participant’s receipt of
                                             section 414(b) and (c) of the Code); the                employer’s plan as early as the date of               the medical treatment.
                                             principal place of business of employers                the child’s birth, and the last day B may                (ii) Conclusion. For purposes of
                                             that employ more than 50 percent of the                 special enroll herself and her child into             determining the 365-day period
                                             active participants covered by the plan                 her employer’s plan is 30 days after                  applicable to D’s claim, the period from
                                             (in the case of a plan covering                         March 15, 2018, which is April 14,                    October 1, 2017 through March 15, 2018
                                             employees of more than one employer,                    2018.
                                             determined disregarding the rules of                                                                          is disregarded. Therefore, D’s last day to
                                                                                                        Example 3 (COBRA premium                           submit a claim is 365 days after March
                                             section 414(b) and (c) of the Code); the                payments). (i) Facts. Individual C
                                             office of the plan or the plan                                                                                15, 2018, which is March 15, 2019.
                                                                                                     resides in Puerto Rico. Before the
                                             administrator; or the relevant office of                hurricane, C was receiving COBRA                         Example 6 (Internal appeal). (i) Facts.
                                             the primary recordkeeper serving the                    continuation coverage under a group                   Individual E resides in Puerto Rico. E
                                             plan was located in one of the disaster                 health plan. More than 45 days had                    received a notification of an adverse
                                             areas (as defined in paragraph III.C.(2))               passed since C had elected COBRA.                     benefit determination from E’s disability
                                             at the time of the hurricane.                           Monthly premium payments are due by                   plan on August 15, 2017. The
                                             D. Later Extensions                                     the first of the month. The plan does not             notification advised E that there are 180
                                                                                                     permit qualified beneficiaries longer                 days within which to file an appeal.
                                               The Agencies will continue to
                                                                                                     than the statutory 30-day grace period                   (ii) Conclusion. When determining the
                                             monitor the effects of Hurricane Maria
                                                                                                     for making premium payments. C made                   180-day period within which E’s appeal
                                             and may provide additional relief as
                                                                                                     a timely September payment, but did                   must be filed, the period from
                                             warranted.
                                                                                                     not make an October payment before the
                                                                                                                                                           September 17, 2017 through March 16,
                                             IV. Examples                                            hurricane.
                                                                                                                                                           2018 is disregarded. Therefore, E’s last
                                                The following examples illustrate the                   (ii) Conclusion. In this Example 3, the
                                                                                                                                                           day to submit an appeal is 148 days
                                             timeframe for extensions required by                    period from September 17, 2017 through
                                                                                                     March 16, 2018 is disregarded for                     after March 16, 2018, which is August
                                             this notice. In each example, assume                                                                          11, 2018.
                                             that the individual described is directly               purposes of making monthly COBRA
                                             affected by the hurricane.                              premium installment payments.                            Signed at Washington, DC, this 17th day of
                                                Example 1 (Electing COBRA). (i)                      Premium payments made by 30 days                      November, 2017.
                                             Facts. Individual A works for Employer                  after March 16, 2018, which would be                  Jeanne Klinefelter Wilson,
                                             X in Puerto Rico and participates in X’s                April 15, 2018 for October, November,                 Deputy Assistant Secretary, Employee
                                             group health plan. On September 20,                     and December of 2017, and January,                    Benefits Security Administration, Department
                                             2017, the day Hurricane Maria made                      February, and March of 2018, are                      of Labor.
                                             landfall, X’s business is destroyed, and                                                                         Signed this 16th day of November, 2017.
                                                                                                       4 Under the COBRA rules, the COBRA period
                                             the plan ceases to function. A has no                                                                         Kirsten Wielobob,
                                                                                                     continues even after the end of the plan, if the
                                             other coverage. Employer Y is part of
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                                                                                                     employer continues to provide any group health        Deputy Commissioner for Services and
                                             the same controlled group as X and                      plan to any employee. Code section                    Enforcement, Internal Revenue Service,
                                             continues to operate and sponsor a                      4980B(f)(2)(B)(ii) and ERISA 602(2)(B) . For
                                                                                                                                                           Department of the Treasury.
                                             group health plan. A is provided a                      purposes of COBRA, ‘‘employer’’ includes the
                                                                                                     person for whom services are performed and any        [FR Doc. 2017–25332 Filed 11–21–17; 8:45 am]
                                             COBRA election notice on December 1,                    other person that is a member of a group described
                                             2017. What is the deadline for A to elect                                                                     BILLING CODE 4510–29–P
                                                                                                     in Code section 414(b), (c), (m), or (o). 26 CFR
                                             COBRA?                                                  54.4980B–2, Q&A 2.



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Document Created: 2017-11-22 00:48:48
Document Modified: 2017-11-22 00:48:48
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionExtension of time frames.
DatesNovember 22, 2017.
ContactElizabeth Schumacher or Suzanne Adelman, Employee Benefits Security Administration, Department of Labor, at 202-693-8335; or Karen Levin, Internal Revenue Service, Department of the Treasury, at 202-317-5500.
FR Citation82 FR 55507 
CFR Citation26 CFR 54
29 CFR 2560
29 CFR 2590

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