As the two federal COVID-19 emergency declarations – the public health emergency and the national emergency – end, employers who sponsor benefit plans must deal with changes in group health plan (GHP) requirements and must navigate and administer the wind-down of deadline delays.
The public health emergency
The Secretary of Health and Human Services declared the COVID-19 public health emergency in January 2020. This declaration is scheduled to end on May 11, 2023. Ending the public health emergency also ends GHP coverage mandates for COVID-19 testing and vaccination, along with some telehealth relief.
During the public health emergency, GHPs must cover most COVID-19 testing for diagnostic purposes without cost sharing or other medical management requirements. As of Jan. 15, 2022, this included coverage of over-the-counter (OTC) tests – up to eight tests per person per month.
With the end of the public health emergency, insurers and self-insured GHP sponsors must decide: which deductibles and copays will apply, if any, to COVID-19 testing at a doctor’s office, in and out of network, and whether to continue to cover OTC COVID-19 tests.
Insured GHP sponsors should check with their insurer on anticipated design changes, if any, and related participant communications.
During the public health emergency, GHPs are required to cover COVID-19 vaccines (including boosters), both in and out of network, without cost sharing. Once the public health emergency ends, non-grandfathered GHPs will still be required to provide COVID-19 vaccines (including boosters) without cost sharing as preventive care. However, GHPs will no longer be required to cover vaccination by out-of-network providers.
The end of the public health emergency impacts telehealth benefit design. During the public health emergency, employers could offer stand-alone telehealth benefits to employees who were otherwise ineligible for the employer’s major medical plan. Absent further relief, stand-alone telehealth plans will need to be terminated by 2024 to avoid a non-compliant GHP.
However, the relief allowing high deductible health plans (HDHPs) to offer first dollar coverage of telehealth services without adversely impacting health savings account (HSA) eligibility will be unaffected by the end of the public health emergency. Congress has extended the option for HDHPs to continue to waive the deductible and cost sharing for any telehealth services without causing a loss of HSA eligibility through 2024.
The national emergency
On March 13, 2020, by Proclamation 9994, the president declared a national emergency concerning the COVID-19 pandemic.
Pursuant to statutory authority relating to this declaration, federal agencies tolled certain deadlines for ERISA benefit plans during the “Outbreak Period,” a period beginning March 1, 2020 and ending 60 days after the end of the national emergency or another date announced by the Department of Labor, Treasury Department, and Internal Revenue Service.
Deadlines delayed for up to one year during the Outbreak Period include: HIPAA special enrollment deadlines, certain ERISA claims and appeals deadlines, and most COBRA deadlines.
At the end of January 2023, a Statement of Administration Policy announced the COVID-19 national emergency would end on May 11, 2023. Subsequently, House Joint Resolution 7 terminated the national emergency as of April 10, 2023. However, federal agencies have taken the position that the Outbreak Period will still end on July 10, 2023 (60 days from May 11, 2023), rather than 60 days from April 10, 2023.
The Outbreak Period relief will remain relevant for some time before ERISA benefit plans can return to pre-COVID-19 timelines. When calculating delayed deadlines, the Outbreak Period is disregarded; to calculate a deadline that occurs after July 9, 2022, the new deadline will be the earlier of the following: calculation using a beginning date of July 10, 2023, or one year after the original deadline.
For example, a request for a HIPAA special enrollment due to marriage that would have been due on May 1, 2023, without the Outbreak Period relief will now be due by Aug. 9, 2023 (30 days after July 10, 2023).
As federal COVID-19 emergency relief draws to an end, employers who sponsor benefit plans need to work with their third-party administrators, insurers, and counsel to confirm post-public health emergency GHP coverage terms and post-Outbreak Period deadline administration, as well as properly document and communicate any changes.
Bethany Bacci is a Stoel Rives LLP partner and a member of the firm’s employee benefits practice group. Howard Bye-Torre is of counsel at Stoel Rives LLP and a member of the firm’s employee benefits practice group. Gabrielle Hansen is a Stoel Rives LLP associate and a member of the firm’s employee benefits practice group.