Departments issue FAQs on end of COVID-19 emergency declarations

The departments of Labor (DOL), Health and Human Services (HHS), and Treasury have released new frequently asked questions (FAQs Part 58) that address what happens to certain relief when the COVID-19 public health emergency (PHE) and national emergency declarations end. Both were scheduled to end on May 11, 2023; however, President Biden has signed Congress’s joint resolution to terminate the national emergency earlier. Thus, while the PHE ends on May 11, the national emergency ended on April 10, 2023.

In general, group health plans will no longer be required to cover the cost of COVID-19 vaccinations provided by out-of-network providers or COVID-19 testing in- or out-of-network. The end of the national emergency also triggered the end of the Outbreak Period, which will end relief from certain deadlines for employee benefit plans subject to ERISA or the Internal Revenue Code.¹

End of the public health emergency

COVID-19 testing

Under the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security (CARES) Act, group health plans must cover COVID-19 tests and related services without cost sharing, prior authorization or other medical management requirements during the PHE. Beginning January 15, 2022, plans must also cover over-the-counter COVID-19 tests authorized, cleared or approved by the U.S. Food and Drug Administration.

The FAQs confirm the following regarding the federal requirements (note, state insurance law or other sources may have additional authority that could affect coverage requirements):

• After the end of the PHE, a plan may impose cost sharing, prior authorization or other medical management requirements for COVID-19 testing and services (or stop covering testing entirely). When testing and related care is administered over a span of time, the plan should use the earliest date of care to determine whether coverage falls within the PHE period.
• After the end of the PHE, COVID-19 test providers will no longer be required to list the cash price of a COVID-19 test on their public internet websites for plans to use to calculate reimbursements if a negotiated rate was not in effect before the PHE; however, the FAQs encourage providers to continue the practice for at least 90 days after the PHE ends to help plans process qualified claims.
• Plans should communicate to participants and beneficiaries about whether or how plan coverage of COVID-19 testing, diagnosis and treatment will change after the PHE. The Departments encourage plans to continue covering benefits for COVID-19 diagnosis and treatment and for telehealth and remote care services after the end of the PHE.
• The plan must notify participants and enrollees of any material modifications to terms that affect the most recent summary of benefits and coverage (SBC), outside of renewal or reissuance of coverage, no later than 60 days before the effective date of the change.
• If the plan made changes to its coverage of COVID-19-related testing and services and revokes these changes when the PHE ends, the plan will have met its obligation to provide advance notice of the material modification (for SBC purposes) if it: 1) previously notified the participant, beneficiary or enrollee of the general duration of the additional benefits coverage or reduced cost sharing (e.g., that the increased coverage applies only during the PHE); or 2) notifies the participant, beneficiary or enrollee of the general duration of the additional benefits coverage or reduced cost sharing within a reasonable time frame before reversing the changes.

Note, providing notice for coverage with respect to a prior plan year does not change the requirement to provide advance notice for coverage in the current plan year.

COVID-19 vaccines

After the PHE ends, non-grandfathered group health plans must continue to fully cover certain COVID-19 preventive care and services provided in network, including those rated “A” or “B” in the current recommendations of the United States Preventive Services Task Force and immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention, as required under the CARES Act. However, they will no longer be required to cover out-of-network preventive services and can impose cost-sharing for qualifying out-of-network care when an in-network care option is available.

End of the national emergency

Outbreak Period

The Outbreak Period will end June 9, 2023 (or a later date if announced by the departments of Labor and Treasury); the following periods and dates subject to relief will be affected:²

• The 60-day election period for COBRA continuation coverage
• The date for making COBRA premium payments
• The date for individuals to notify the plan of a COBRA qualifying event or determination of disability
• The deadline for employers to provide individuals with notice of their COBRA continuation rights
• The 30-day (or 60-day in some cases) group health plan special enrollment period
• The time frames for filing claims under the plan’s claims-processing procedures (applicable to group health claims but also other employee benefit claims, such as life insurance and disability)
• The deadlines for requesting internal and external appeals for adverse benefit determinations (all types of ERISA employee benefit plans are subject to the internal appeals extensions, but only group health plans are subject to the external appeals extensions)

The FAQs provide several examples of how group health plans can administer the end of the Outbreak Period related to the above elections or other actions.

Special enrollment rights (Medicaid and CHIP)

As Medicaid and CHIP programs resume their regular pre-pandemic eligibility and enrollment practices, employees and their dependents who lose coverage may have a special enrollment right.³ Those who lose Medicaid or CHIP coverage from March 31, 2023 (the end of the continuous enrollment condition) until June 9, 2023 (the end of the Outbreak Period) can request special enrollment in a group health plan governed by ERISA and the Internal Revenue Code until 60 days after the end of the Outbreak Period (August 8, 2023).

The DOL created a flyer that can be shared with individuals who may lose their Medicaid or CHIP coverage after March 31, 2023.

HSA-qualified HDHPs

Until the IRS issues guidance that states otherwise, health savings account (HSA)-qualified high-deductible health plans (HDHPs) may continue to cover COVID-19 testing and treatment before the annual deductible is met without affecting their qualified status. The IRS is expected to issue additional guidance soon on whether the relief will continue; however, the FAQs note that, in general, HDHPs won’t be required to make changes in the middle of a plan year in order for covered individuals to remain eligible to contribute to an HSA. As such, it is unlikely the relief will be changed before January 1, 2024 (for calendar-year plans).

Next steps

To prepare for the end of the COVID-19 emergencies, employers should:

1. Work with their carriers, third-party administrators and legal counsel to determine what changes, if any, to make to their group health plans (e.g., continue covering out-of-network COVID-19 vaccines at no cost, add cost sharing or eliminate coverage of out-of-network COVID-19 vaccines altogether)
2. Communicate any changes to plan participants through such vehicles as updated summary plan descriptions, summary of material modifications or reductions, summary of benefits and coverage, and individual letters regarding extended elections and other actions due to the Outbreak Period end
3. Coordinate with their carriers, third-party administrators and legal counsel to ensure their plans are administered according to the guidance, particularly as it relates to end of the Outbreak Period
4. Prepare for employees and their dependents who lose Medicaid or CHIP coverage to request special enrollment in the group health plan

Employers offering HSA-qualified HDHPs and providing coverage for COVID-19 testing or treatment should watch for future IRS guidance as to when that relief will end.

Footnotes

¹ See “What the end of the COVID-19 emergencies will mean for group health plans,” Insider, February 2023.

² See “President Biden extends national emergency, Outbreak Period rules continue,” Insider, March 2022.

³ See “Medicaid redeterminations may impact group health plans,” Insider, April 2023.