May 11, 2023

• Extensions of 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 services (including vaccines) without imposing cost-sharing requirements (including deductibles, copayments, and coinsurance) or prior authorization or other medical management requirements.

Different Ends to the COVID-19 Emergency Declarations

The Biden Administration initially announced on February 10, 2023 that that NE and PHE will be terminated together at the end of the day on May 11, 2023. In conjunction with that announcement, HHS released a fact sheet on February 9, 2023 titled “COVID-19 Public Health Emergency Transition Roadmap”. The Departments released FAQs Part 58 on March 29, 2023, in which the Departments refer to the May 11th date as the anticipated end of both emergency declarations and around which certain timeline extensions associated with the “Outbreak Period” are based (discussed further below). However, following passage by Congress, President Biden signed a Joint Resolution on April 10, 2023 declaring an immediate end to the NE.

Following the statutory termination of the NE, the DOL and HHS held a stakeholder briefing call on April 12, 2023. During the discussion, the Departments communicated on the call (beginning around the 40-minute mark) that the Administration views FAQs Part 58 as an announcement of end-of-day July 10, 2023 as an alternative end date of the outbreak period (as opposed to 60 days from April 10th.) The Business Group asked the Departments for further clarification on the call (beginning around the 45-minute mark) and requested written guidance or a statement with confirmation. The Departments refer to the original rule from May 4, 2020 for authority to announce an alternative date, other than the date 60 days after the announced end of the NE. Therefore, the Departments expect plans and issuers to follow FAQs Part 58 guidance. Employer sponsors should discuss this informal announcement, and the implications on timeframe extensions and deadlines, with legal counsel.

FAQs Part 58

COVID-19 Diagnostic Testing

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

FAQs Part 58 confirms that plans and issuers are not required to continue covering COVID-19 tests and related services after the end of the PHE. If they chose to cover these services, plans and issuers may impost cost-sharing, prior authorization, or other medical management requirements. However, the Departments encourage plans and issuers to continue providing this coverage after the PHE ends. The FAQs also remind plans and issuers that the PHE coverage requirements apply based on the date the item or service is rendered to an individual, not the date the claim is submitted.

Plans or issuers that make material modifications to the coverage of COVID-19 tests post-PHE must update the summary of benefits and coverage (SBC) no later than 60 days before the effective date of the change. Under prior relief, a plan or issuer was generally not subject to this 60-day notification requirement if the plan or issuer previously notified participants of the general duration of the testing coverage (e.g., reduced cost-sharing for COVID-19 tests were available only for the duration of the PHE). FAQs Part 58 informs plans and issuers that notification given for a prior plan year will not be considered to satisfy the obligation to provide advance notice for coverage in the current plan year.

COVID-19 Vaccinations

The CARES Act requires that group health plans and issuers cover qualifying coronavirus preventive services (i.e., vaccines and boosters) without cost-sharing requirements for the duration of the PHE. FAQs Part 58 confirms that although this requirement ends following the PHE, non-ACA-grandfathered group health plans are still required to cover COVID-19 vaccines in-network under the ACA’s preventive services mandate. This includes preventive services with an “A” or “B” rating by the U.S. Preventive Services Task Force (USPSTF) and immunizations recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC).

The FAQs note that following the end of the PHE, plans and issuers will not be required to cover qualifying coronavirus preventive services out-of-network and can impose cost-sharing or other medical management requirements for out-of-network services when an in-network care option is available at no cost. Plans or issuers that do not have an in-network provider who can provide qualifying coronavirus preventive services must continue to cover these services without cost-sharing without regard to network status.

Published around the same time as FAQs Part 58, the Departments provided guidance in FAQs Part 59 regarding the implications of the federal trial court’s ruling in Braidwood Management, Inc. v. Becerra regarding coverage of preventive services under the ACA, including with respect to qualifying coronavirus preventive services. For additional information, see our article on FAQs Part 59.

Outbreak Period Extensions and Deadlines

During the NE, certain deadlines for HIPAA special enrollment, COBRA continuation coverage, and internal claims and appeals and external review must be disregarded for certain elections and other actions by employee benefit plans subject to ERISA and the Internal Revenue Code (Code). The Departments clarified in EBSA Disaster Relief Notice 2021-01 that the disregarded periods run until the earlier of (1) one year from the date on which they would have started to run or (2) 60 days after the end of the NE.

FAQs Part 58 confirm that the NE “outbreak period” will end at the end of the day on June 10, 2023 (see Different Ends to the COVID-19 Emergency Declarations above). The FAQs provide examples illustrating how the different deadlines will apply post-NE, including with respect to electing COBRA (examples 1-3), paying COBRA premiums (example 4), and special enrollment periods (examples 5-7).

Medicaid/CHIP-Related Special Enrollment

As state Medicaid and CHIP programs resume their pre-PHE eligibility and enrollment practices following the conclusion of the continuous enrollment condition, individuals may lose their Medicaid or CHIP eligibility and need to transition to other coverage, including employer-sponsored coverage. Employer-sponsored group health plans are required to provide a special enrollment period (SEP) for circumstances in which an employee or their dependents (a) lose eligibility for state Medicaid or CHIP coverage, or (b) become eligible for state premium assistance under Medicaid or CHIP for group health plan coverage.

In these circumstances, typically an employee must request coverage under the group health plan within 60 days after termination of Medicaid or CHIP coverage. The emergency relief notices issued by the Departments provide that eligible individuals losing Medicaid or CHIP coverage are eligible for relief and can request a SEP in an ERISA group health plan until 60 days after the end of the outbreak period. FAQs Part 58 encourages plan sponsors to offer a longer SEP than the minimum 60-days required by statute.

The Departments have also published additional resources for employers such as a DOL flyer on the loss of Medicaid/CHIP coverage, a report from HHS on how redeterminations will impact workers with Medicaid, as well as a repository with information and template materials related to redeterminations on CMS’ website.

As noted above, the publication by the Departments of the April 17, 2023 stakeholder call recording suggests the Departments view FAQs Part 58 as an announcement of end-of-day July 10, 2023 as an alternative ending date of the outbreak period. Employer plan sponsors should discuss the implications with legal counsel.

Testing and Treatment for HDHPs and HSAs

In March 2020, Treasury/IRS published Notice 2020-15 in response to the PHE providing that a health plan that otherwise satisfies the requirements to be high deductible health plan (HDHP) will not fail to be an HDHP merely because the plan provides medical care services and items purchased related to testing for and treatment of COVID-19 prior to the satisfaction of the applicable minimum deductible.

FAQs Part 58 extends this guidance and confirms that individuals covered by a HDHP will continue to be eligibility to contribute to a health savings account (HSA) if covered by a HDHP covering testing and treatment for COVID-19.

Other Considerations – Stand-Alone Telehealth Relief

During the PHE, employer plan sponsors have had the flexibility to offer stand-alone telehealth benefits to employees not eligible for the employer’s medical benefits. This policy allowed employer plan sponsors to temporarily treat telehealth as an excepted benefit, exempting these services from many ERISA and ACA group health plan mandates (e.g., covering ACA-required preventive services at no cost to participants).

Stand-alone telehealth coverage will no longer be permitted after the end of the PHE; however, to avoid mid-year disruption, the guidance provides a run-out extension to allow stand-alone telehealth to continue for the duration of any plan year beginning before the end of the PHE. A bipartisan group of lawmakers in the House of Representatives has reintroduced legislation – the Telehealth Benefit Expansion for Workers Act of 2023 (H.R. 824) – that would expand and make permanent this stand-alone tele helath relief. Business Group on Health will keep members updated on developments related to this legislation.

As a reminder, this stand-alone telehealth relief is distinct from previously enacted legislation providing a two-year extension of COVID-19 telehealth relief for HSA-qualifying HDHPs to cover low-cost and/or no cost telehalth services before the otherwise applicable minimum deductible is satisfied.

Next Steps

To prepare for the end of the COVID-19 emergencies, employer plan sponsors should review the FAQs with legal counsel, carriers/vendor partners, and third-party administrators (TPAs) to determine what changes, if any, need to be made following the termination of the emergency declarations. These include:

• Reviewing and determining coverage for COVID-19 tests, including OTC tests, following the end of the PHE;
• Reviewing and determining coverage for out-of-network COVID-19 vaccines post-PHE;
• Communicate any coverage changes to plan participants via applicable notices such as SBCs, summaries of material modifications (SMMs), and/or summary plan descriptions (SPDs);
• Reviewing and planning to transition out of the “outbreak period” and/or 1-year timeframe extensions;
• Review potential Mental Health Parity and Addiction Equity Act (MHPAEA) compliance considerations;
• Review enrollment options for eligible individuals who may lose Medicaid or CHIP coverage and may wish to request a special enrollment in the group health plan;
• If offering HSA-qualified HDHPs, watch for future IRS guidance related to the relief provided for the coverage of COVID-19 testing and treatment pre-deductible; and
• Review applicability of stand-alone telehealth (if any were implemented).

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