The COVID National and Public Health Emergencies end May 11, 2023: Impact on Group Health Plans
Summary
On January 30, 2023, President Biden announced plans to end – on May 11, 2023 – two COVID related emergencies.
- Both the COVID National Emergency and the Public Health Emergency were set to expire in March and April 2023, respectively, but Biden plans to extend the emergencies to May 11, 2023 and then end both emergencies on the same date
- The COVID-19 “Outbreak Period” associated with the National Emergency will end 60 days after the National Emergency ends on May 11, 2023 – which means the Outbreak Period will end on July 10, 2023
- The COVID National Emergency required group health plans to extend certain HIPAA, COBRA and CLAIMS/APPEALS deadlines during the associated COVID “Outbreak Period”
- The Public Health Emergency required group health plans to cover certain COVID vaccines and tests at no cost
Background
The COVID-19 pandemic triggered several federal emergencies, but two of them directly impact group health plans: the Public Health Emergency and the National Emergency. Each had different start and end dates and each served a different purpose. For more information about each, and to learn how the forthcoming end of the National Emergency and the Public Health Emergency affects group health plans, keep reading.
Public Health Emergency
A Public Health Emergency (PHE) is declared due to a significant infectious disease outbreak by the Secretary for the U.S. Department of Health and Human Services (HHS). It lasts for 90 days, can be renewed, terminated early, or allowed to expire. HHS declared the COVID Public Health Emergency effective January 27, 2020 and continuously renewed it multiple times. The most recent renewal was on January 11, 2023 with a promise to provide at least 60 days’ notice before the end date.
When a PHE is declared, HHS has authority to issue temporary health care requirements. Under the COVID PHE, HHS added the following requirements to group health plans:
- Plans must cover COVID vaccines/boosters without cost sharing and without pre-authorization for both in-network and out-of-network providers
- Plans must cover COVID diagnostic testing and testing related services without cost sharing and/or pre-authorization
- Effective starting January 15, 2022, plans must also cover of up to 8 over-the-counter (OTC) home tests per month without doctor order or prescription
- Home testing kits must be approved by the FDA
- Can limit reimbursement cost to $12.00
- Plans may offer stand-alone telehealth benefits to individuals who are not eligible for coverage under any group health plan offered by employer
When the PHE ends on May 11, 2023, group health plans have certain remaining requirements as well as some options. Sponsors of group health plans should be aware of these and should determine and prepare in advance of May 11.
- Requirements for group health plans
- Must continue to cover COVID-19 vaccines at no cost with in-network providers
- Options for group health plans
- May continue to cover COVID-19 vaccines at no cost (and no pre-authorization ) with out-of-network providers
- May continue to cover COVID-19 tests (provider and/or over-the-counter home test) at no cost and no pre-authorization
- Not allowed for group health plans
- May NOT offer stand-alone telehealth benefits to individuals who are not eligible for coverage under any group health plan offered by employer
National Emergency
A National Emergency (NE) is declared by the U.S. President and may last for one year but can be renewed, terminated early or allowed to expire. The President declared a COVID NE effective March 1, 2020. The President extended the EN in 2021 and again in 2022.
On April 29, 2020 the U.S. Department of Labor (DOL) and the U.S. Department of Treasury (Treasury) issued regulations that established an “Outbreak Period” (OP) that would run parallel to the NE and would end 60 days after the end of the NE. The OP authorized the extension of specific deadlines related to retirement, health and welfare plans that would end one year from the date the plan (or individual’s) deadline period would have commenced, or would end with the end of the OP (60 days after the end of the NE), whichever comes first.
The extended deadlines impact certain HIPAA, COBRA and claims/appeals timeframes:
- The 30-day period (or 60-day period, if applicable) to request HIPAA special enrollment.
- The 60-day election period for COBRA continuation coverage.
- The date for making COBRA premium payments (usually 45 days after the day of initial COBRA election with a grace period of at least 30 days for subsequent premium payments).
- The date for individuals to notify the plan of a COBRA qualifying event or new disability (usually 60 days from date of event, loss of coverage or disability determination).
- The date for plan sponsors and administrators to provide a COBRA election notice.
- The date in which individuals may file a benefit claim under a plan’s claims procedures.
- The deadlines for requesting internal and external appeals for adverse benefits determinations.
When the NE ends on May 11, 2023, the 60-day clock counting down the end of the “Outbreak Period” starts ticking. After the 60 days the deadline extensions end. The 60 days end on July 10, 2023, and the above listed extended deadlines revert to regular pre-COVID time periods.
Sponsors of group health plans should be aware of these deadlines and should start considering, prior to May 11, and July 10 of 2023, the following:
- Not every participant’s applicable deadline will end with the end of the OP. Some will still end earlier, so remember to calculate each situation case by case. This is because deadlines for some individuals will end prior to July 10, 2023 if their one-year mark comes earlier.
- It may be valuable to send advance communications to participants with deadlines that will end earlier than the one year mark due to the forthcoming end of the OP.
- It is possible to allow an additional short extension to deadlines (e.g. provide 30 additional days for all affected participants) but it is important to confirm with carrier/TPA.
Summary
Both the COVID National Emergency and the Public Health Emergency will expire on May 11, 2023. The “Outbreak Period” associated with the National Emergency (that extends certain group health plan deadlines) will end on July 10, 2023. Sponsors of group health plans should be aware of these deadlines and should plan in advance to deal with the change consistent with the rules. Any changes should be discussed with the carrier and/or TPA and group health plan materials, communications and documents, under ERISA rules, should accurately reflect those changes.
Postscript on Telehealth Coverage
In response to the COVID-19 pandemic, the Coronavirus Aid, Relief and Economic Security (CARES) Act allowed high deductible health plans (HDHPs) compatible with health savings accounts (HSAs) to provide benefits for telehealth or other remote care services before plan deductibles were met. This relief was not linked to the PHE, NE or Outbreak Period; rather, it applied for plan years beginning before Jan. 1, 2022. A spending bill extended this relief to telehealth services provided in months beginning after March 31, 2022, and before Jan. 1, 2023.
The Consolidated Appropriations Act, 2023 (CAA), which was signed into law on Dec. 29, 2022, extends the ability of HDHPs to provide benefits for telehealth or other remote care services before plan deductibles have been met without jeopardizing HSA eligibility. This extension applies for plan years beginning after Dec. 31, 2022, and before Jan. 1, 2025. Thus, regardless of when the COVID-19 emergency periods end, HDHPs may be designed to waive the deductible for any telehealth services for plan years beginning in 2023 and 2024 without causing participants to lose HSA eligibility.
