By A. Christopher Wieber (Law Office of Mark Scherzer)
What if your long-term disability claim was denied and you have a 180-day appeal deadline, but — due to the coronavirus pandemic — your doctors’ offices have been closed, or short-staffed, so that it is impossible to obtain supporting medical documentation in a timely fashion? If your claim is subject to ERISA, the law that — with certain exceptions — covers most employer-sponsored health, life or disability plans, then you may be entitled to request additional time to meet your deadline.
The Employee Benefits Security Administration (“EBSA”) issued regulations on May 4, 2020, which suspends all ERISA deadlines “from March 1, 2020 until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a future notification (the “Outbreak Period”).” See, ERISA Deadline Extension Due to Covid-19 Outbreak.
There has been no announcement that the National Emergency is over or that the Outbreak Period has ended. Indeed, since May 4th, the National Emergency was renewed as of July 23, 2020, and most recently, as of October 23, 2020. See, 10-02-2020 Renewal of Covid-19 National Emergency.
In February, 2021, EBSA issued a clarification of its 05-04-2020 ERISA Deadline Extension regulations. It noted that it had received requests for guidance because the regulations dictated that “the disregarded period for individual actions ‘required or permitted’ is expressly limited by statute to a period of 1 year from the date the individual action would otherwise have been required or permitted,” that as of February 28, 2021, one year from the initial effective date of March 1, 2020, would occur, and that, as a consequence, it was unclear precisely how its original regulations would operate after that date. EBSA’s new guidance states:
Individuals and plans with timeframes that are subject to the relief … will have the applicable periods … disregarded until the earlier of (a) 1 year from the date they were first eligible for relief, or (b) 60 days after the announced end of the National Emergency (the end of the Outbreak Period). On the applicable date, the timeframes for individuals and plans with periods that were previously disregarded under the Notices will resume. In no case will a disregarded period exceed 1 year.
EBSA Disaster Relief Notice 2021-01: Guidance on Continuation of Relief for Employee Benefit Plans and Plan Participants and Beneficiaries Due to the COVID-19 (Novel Coronavirus) Outbreak. EBSA also notes that the end of the Outbreak Period has not yet occurred.
This guidance clarifies that even if the Outbreak Period continues into the indefinite future, the extension of deadline periods is not indefinite, and will expire after one year. At that point, the usual deadline period will re-start. So, for example, if a long-term disability claim was denied on April 15, 2020 (during the National Emergency/Covid-19 Outbreak Period), the deadline for filing an appeal (normally 180 days) would have occurred on October 12, 2020). However, due to the National Emergency declaration, the appeal deadline would have been tolled throughout the Outbreak Period. However, the new EBSA guidance makes clear that this tolling is limited to one year, so that in our example, the tolling would end on April 14, 2021. At that point, the deadline clock would re-start, so that the appeal would be due by October 11, 2021. However, if the Outbreak Period ends during this time frame, the deadline could be 60 days thereafter — which, if earlier than October 11, 2021, would become the new operative deadline.
Consequently, any claimant who is facing a deadline period that commenced on or after March 1, 2020, and which involves a health, life or disability claim subject to ERISA, should consider making a request for additional time (if necessary) to the insurance company handling the claim. Under the governing regulations, the insurance company should agree to any such reasonable request. While the regulations should, on their own, extend the deadline without a request, it is nonetheless safer and a better practice to request additional time before any existing deadline has expired. Moreover, this may allow the claimant to negotiate a clear, fixed deadline (whereas the existing regulations could flip from a longer deadline to a shorter deadline, when the National Emergency Covid-19 Outbreak Period is declared to be over).
If you are facing a deadline with regard to your claim, and require legal assistance, please contact our office to see if our lawyers can help.
Chris Wieber is an ERISA disability claim attorney in New York with nearly 30 years’ experience handling claims arising under employer-sponsored short and long term disability plans governed by ERISA (the Employee Retirement Income Security Act).