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End Dates Announced for COVID-19 Emergency Declarations; Employer Plans Will Need to Act to Unwind Relief Provisions

The Biden Administration announced it will end the COVID-19 national and public health emergencies on May 11, 2023. The announcement signals the unwinding of emergency provisions and requirements implemented starting in March 2020. For employer plans, action will be required to return to non-emergency plan operation.

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February 02, 2023

On January 30, 2023, the Biden Administration announced that both the COVID-19 National Emergency and the Public Health Emergency (PHE) would end on May 11, 2023. With the National Emergency set to expire on March 1 and the PHE set to expire on April 11, respectively, the Administration stated they would extend both emergency declarations and then terminate the declarations together on May 11. The timing aligns with the Administration’s commitment to provide at least 60 days’ notice prior to the termination of the PHE.

The announcement was made as part of a Statement of Administrative Policy from the White House opposing two resolutions proposed for a vote in the House of Representatives that would have abruptly ended the emergency declarations. Although neither measure was expected to pass both chambers of Congress, the action by the Administration brings certainty as to the closing of both emergencies.

At the onset of the COVID-19 National Emergency and PHE, the federal government adopted a variety of legal and agency guidance allowing certain relief for plans and requiring flexibility and coverage for participants and beneficiaries. Detailed in other Business Group materials (See Related Content, above, and Resources, below), these included:

  • Extensions for plans to furnish plan notices and disclosures;
  • Extensions and flexibilities related to HIPAA special enrollments;
  • Extensions related to COBRA elections and payments;
  • Extensions related to ERISA claims and appeals procedures and external review processes; and
  • Requirement that employer-sponsored plans generally cover certain items and services related to diagnostic COVID-19 (including vaccines) without imposing cost-sharing requirements (including deductibles, copayments, and coinsurance) or prior authorization or other medical management requirements.

The unwinding of pandemic-era flexibilities and emergency requirements will necessitate plan sponsors working with their service providers to review, revert, and/or redesign impacted plan terms. Some plan terms (e.g., extended claims and appeals procedures) would generally be expected to revert to the plan’s typical provisions and administration. While others (e.g., coverage for COVID-19 testing) may be able to be redesigned and aligned to other similar benefits. As is the case generally with plan changes, advance notice of the change(s) may be needed, and plan sponsors should confer with legal counsel and consultants to ensure plans navigate any transition appropriately.

The Business Group is in contact with the relevant federal agencies and working to help ensure that any unwinding requirements are minimally burdensome on plan sponsors and maintain design, administrative, and implementation flexibility. While employers will need to address numerous short- and long-term issues for affected plan terms and procedures, it will not be a one-size-fits-all exercise to move through the transition period to reach their desired sustainable plan designs and administration. The following highlights may help plan sponsors begin their review and start next steps for unwinding emergency provisions.

Note, while the National Emergency and PHE will end on May 11, 2023 and some plan changes may be immediately implementable as of that date (assuming appropriate notice is provided), others may require a run-out or transition period.

  • Review and plan transition out of the applicable “outbreak period(s)” and/or 1-year extensions for individuals. Plans may experience some increased activity or inquiries as impacted individuals are notified that extended periods are ending.
  • Review applicability of stand-alone telehealth benefits (if any were implemented);
  • Review COVID-19 testing coverage, including for over-the-counter tests and those administered by medical professionals;
  • Review coverage for COVID-19 vaccine(s) under preventive services requirements, including application of in-network provisions, and considering cost-shifting from discontinued government purchasing;
  • Review enrollment options for individuals who lose Medicaid coverage and may wish to enroll in their employer’s plan; and
  • Review notice requirements for plan changes, whether mid-calendar year or if implemented as of the start of the 2023 plan year for non-calendar year plans.

Business Group on Health will continue to monitor developments related to the termination of the emergency declarations and provide updates as they occur. We would welcome your comments, experiences, observations, and requests so that we can effectively advocate on behalf of our members.

We will review the implications and planning considerations of for employer group health plan sponsors during our upcoming Regulatory & Compliance webinar on February 16, 2023. Attendees will have an opportunity to engage with the Business Group’s Policy & Advocacy team and ask questions (registration is available here). Meanwhile, for any questions or comments, please feel free to contact Garrett Hohimer, Vice President, Policy & Advocacy at [email protected].

Resources

We provide this material for informational purposes only; it is not a substitute for legal advice.

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