COVID National Emergency Now Ended! Summary of COVID-Related Action Items

During the COVID-19 Public Health Emergency (PHE) and National Emergency (NE) periods, the government issued various forms of temporary relief to employers and plan participants. They also required employers to make certain health plan design changes during these emergency periods, such as covering COVID-19 testing and extending many health plan-related deadlines.

• Public Health Emergency: The Health and Human Services (HHS) first established the Public Health Emergency for COVID-19 (PHE) in January 2020. This PHE has been extended multiple times in 90-day increments.
• National Emergency: On March 13, 2020, the COVID-19 National Emergency was declared by former President Trump and was subsequently continued by both President Trump and President Biden. A National Emergency declaration is in effect until it is terminated by the President, through a joint resolution of Congress, or is not continued by the President.

The Biden administration announced earlier in 2023 that it planned to end both emergencies on May 11, 2023. However, Congress acted to pass a joint resolution to terminate the National Emergency sooner (on April 10, 2023). It was signed into law by President Biden, formally ending the National Emergency. Note that the Public Health Emergency is still slated to end on May 11, 2023.

In the interim, the DOL, HHS, and the Treasury collectively issued guidance in the form of FAQs, which provide important information to assist plan sponsors in unwinding the requirements of the emergency declarations. (Link to FAQs here.)

With the end of the emergency periods fast approaching, employers should begin evaluating decisions and action items that are required pursuant to this change. This article provides an overview of each issue as well as a summary of Action Items for employers.
 

Important Interim Update

On April 14, 2023, the Department of Labor provided informal comments that the tolling period for benefit plan deadlines will still end on July 10, 2023. While the legislation that was signed ending the National Emergency on April 10, 2023, would have moved the deadline a month earlier, the DOL is considering changing a rule so that it will still end on July 10 as previously scheduled. The final deadline tolling date will be confirmed upon the information being confirmed and formalized by the DOL.
 

COVID-19 Testing

• During the PHE: Under the FFCRA and the CARES Act, health plans are currently required to cover COVID-19 tests and testing-related services without cost-sharing, prior authorization, or other medical management techniques. Health plans are also required to cover up to eight OTC tests per person per month without cost-sharing.
• After the PHE Ends: After the end of the PHE, health plans will no longer be required to cover COVID-19 tests and testing-related services for free, and health plans may impose cost-sharing, prior authorization, or other medical management requirements for such services.

Decision Point: It should be noted that the joint Departments encourage plan sponsors to retain coverage for COVID-19 testing. That said, Plan Sponsors need to decide whether to amend their health plans to:

1. Stop providing any coverage for COVID-19 tests at the end of the PHE
2. Continue offering coverage for COVID-19 testing but impose requirements on this testing (such as cost-sharing)
3. Continue offering coverage for a certain period of time, for example, through the end of the plan year, and then eliminate coverage.

COVID-19 Vaccines

• During the PHE: The CARES Act required plans to cover COVID-19 vaccines and boosters without cost-sharing. This CARES Act requirement will end as of May 11, 2023.
• After the PHE Ends: Plans will no longer be required to cover vaccines and boosters without cost sharing. However, note that non-grandfathered health plans (most plans) will still be required to cover in-network COVID-19 vaccines without cost-sharing as part of the ACA preventive services mandate that applies indefinitely for certain in-network immunizations.

Plan Deadline Extensions

• Before the NE: At the outset of the National Emergency period, the government recognized that employers and employees might have difficulty meeting certain plan deadlines due to the pandemic.
• During the NE: The Departments issued guidance extending certain ERISA plan deadlines. Plans were required to disregard the period beginning March 1, 2020, and ending 60 days after the National Emergency period terminates (the “Outbreak Period”) in determining deadlines for:

1. HIPAA special enrollment
2. COBRA 60-day election period
3. COBRA premium payment 
4. COBRA notification to the plan by an individual of a qualifying event or determination of disability
5. Filing a claim for benefits
6. Filing an appeal of a claim denial 
7. External review request for a final claim denial by a health plan
8. External review filing of information to perfect an external review request

• After the NE Ends: All deadlines will revert to the standard statutory deadlines.

Mental Health Parity

• During the PHE: Group health plans were able to disregard benefits for COVID-19 diagnostic testing and related services, required to be covered at no cost sharing for purposes of parity under the Mental Health Parity and Addiction Equity Act (MHPAEA).
• After the PHE Ends: This relief was not extended after the end of the PHE. Therefore, plans must now ensure that coverage of COVID-19 diagnostic testing and related services complies with MHPAEA.

Special Enrollment Period for Loss of Medicaid or CHIP Coverage

• During the NE: Since the beginning of the NE, many state Medicaid agencies have not terminated enrollment of Medicaid beneficiaries who enrolled on or after March 18, 2020, through March 31, 2023 (referred to as the “Continuous Enrollment Condition”).
• After the NE Ends: Many individuals will lose Medicaid and CHIP coverage as state agencies resume their regular eligibility and enrollment practices. Accordingly, these individuals will need to transition to other coverage, including employer-sponsored group health plan coverage. To help facilitate this transition, if an employee loses eligibility for Medicaid or CHIP coverage, they will have a HIPAA special enrollment period to enroll in employer-sponsored coverage mid-year. The election window must be at least 60 days long (running through the end of the deadline tolling period).

HDHP/HSA - COVID-19 Treatment, Testing, and Telehealth Still Permitted

• Before the PHE: Standard IRS HSA rules require that individuals must be covered under an HDHP to be HSA-eligible. Generally, the HDHP must not provide reimbursement for any expenses until after the statutory deductible has been met, with the exception of preventive care.
• During the PHE: The IRS announced that HDHPs could provide COVID-19 testing and treatment for HDHP participants who had not met their deductible without impacting the individual’s HSA eligibility. In addition, to promote the use of telehealth services dur­ing the pandemic, the government passed legislation allowing HDHPs to offer telehealth coverage on a first-dollar basis (without compromising an individual’s ability to contribute to an HSA).
• After the PHE Ends: At the beginning of the pandemic, the IRS issued Notice 2020-15, which permits an HDHP to provide first-dollar coverage for COVID testing and treatment without causing a participant to be ineligible to contribute to an HSA. Although this notice was issued due to the PHE, it applies until further guidance. Therefore, this relief will continue past the end of the PHE. For telehealth services, the relief applies for the 2023 and 2024 plan years and is not impacted by the end of the emergency periods.

Participant Communication

It is always best practice to notify participants of any plan changes. The joint Departments strongly encourage plan sponsors to notify plan participants of changes to COVID-19 coverage pursuant to the end of the NE. However, special rules apply such that Summaries of Benefits and Coverage (SBCs) need not be amended mid-year.

Following is an overview of potential participant communications:

• COVID-19 Testing: If coverage is eliminated from the health plan, plan sponsors should notify plan participants. In addition, plan sponsors may choose to remind participants that COVID-19 tests purchased by an individual may be reimbursed through an FSA, HRA, or HSA.
• COVID-19 Vaccines: If copays are added for COVID vaccines, plan sponsors should communicate the change to plan participants.
• Plan Deadline Extensions: Participants and COBRA Qualified Beneficiaries should be sent communications to clarify that applicable deadlines have reverted to “normal” and that any personal 12-month “tolling periods” will end 60 days after the National Emergency Ends.
• Special OE for Medicaid/CHIP: Employers should reach out to employees who have waived group health plan coverage in favor of Medicaid or CHIP to encourage these employees to update their contact information with the state Medicaid or CHIP agency and to respond promptly to any communication from the state. The Department of Labor has provided a flyer that employers may use when communicating to their employees about their healthcare options upon losing Medicaid or CHIP coverage. (Link to flyer here)
• HDHP/HSA Coverage Provisions: If continued, confirmation for plan participants that HSA contributions will not be adversely affected by continued coverage of COVID testing, COVID treatment, or telehealth services would be welcome for plan participants. If not continued, notification should be provided to clarify the coverage change.

Action Items for Employers

Employers should consider how the end of the emergency periods will impact their plans and take stock of necessary action items.

1. Plan Decisions: Employers should evaluate whether to keep their plan designs in place through the end of the plan year (or longer) or amend their plans for the end of the emergency periods (as outlined above).
2. Plan Amendments: To the extent changes in plan coverage will affect plan language, plan contracts, and certificates will need to be amended.
3. Update SPDs, SMMs, and SBCs: To the extent the plan is amended, updated SPDs will need to be issued. In addition, if the changes affect the content on the SBCs, revised SBCs must be issued.
4. Coordinate with Insurance Carriers: Employers will need to coordinate any new plan design changes with insurance carriers and TPAs.
5. Coordinate with COBRA Administrator: Employers will want to coordinate communication with Qualified Beneficiaries for notification of end-of-deadline extensions.
6. Participant Communication: Employers should provide notice to participants regarding any coverage changes. To the extent coverage changes could be but are not made, it may be useful to provide proactive communication to affirm the COVID-related plan provisions that will remain. (See the summary of potential communication items above.) Communications should be distributed reasonably in advance of any plan design changes.