April 04, 2023

On March 29, 2023, the Departments issued ACA FAQs Part 58 addressing how the end of the PHE impacts requirements to cover COVID-19 diagnostic testing and vaccines, as well as how the end of the NE affects extensions of certain time frames for employee benefit plans and their participants and families.

These FAQs are organized in sections covering specific issues plan sponsors may be dealing with, uncertain about, or for which they are preparing with their vendors and service providers. Each section lays out the background and legal basis for the requirements that applied during the emergencies and then outlines the particular questions about the transition and what will be required or encouraged for plans following the termination of the emergencies, including the run-out of any applicable 60-day period thereafter.

The FAQs confirm much of what Business Group members and plan sponsors were planning for, but the Departments encourage plans to adopt certain otherwise not-required coverage and provide ample time for transitions. Some summary highlights of the FAQs include:

• Plans will not be required to continue to cover COVID-19 testing under Section 6001 of the Families First Coronavirus Response Act (FFCRA) and if coverage for testing is continued, cost-sharing, prior authorization, or other conditions may be required. The Departments are, however, encouraging plans to continue no-cost coverage for testing.
• Plans will be required to continue to cover certain COVID-19 vaccines and their administration after the end of the PHE; however, in-network limitations may be adopted in certain cases.
• A detailed explanation with examples regarding the NE/PHE termination on timeframe extensions granted to many otherwise applicable deadlines (e.g., COBRA election or payments; filing of claims and/or appeals).
• Confirmation that the last day of the “outbreak period” (defined in prior guidance) will be July 10, 2023 and will no longer apply after the end of the day.
• In recognition of expected wide-spread Medicaid or CHIP eligibility redeterminations in coming months, statements regarding required special enrollment periods (SEP). In general, a SEP must be offered 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.
• Confirmation that a high deductible health plan (HDHP) that provides pre-deductible medical care services and items purchased related to testing for, and treatment of, COVID-19 will be permitted and will not disqualify a covered individual from contributing to an HSA.
• Detailed information regarding advanced notice that may be required or encouraged for any coverage or process changes that covered individuals may experience.

Note that for many of these provisions, the Departments provide timing considerations that should be reviewed carefully under the terms of the plan and expected transition so that plans appropriately handle date recognition for when an item or service is required or not required to be covered.

Business Group on Health will continue to engage with the Departments on the close of the emergency periods and any related transition issues and will provide updates on future developments. We will review the implications and planning considerations for employer group health plan sponsors during our upcoming Regulatory & Compliance webinar on April 18, 2023. Attendees will have an opportunity to engage with the Business Group’s Policy & Advocacy team and ask questions. Meanwhile, for any questions or comments, please feel free to contact Garrett Hohimer, Vice President, Policy & Advocacy at [email protected].

Resources

• ACA FAQs Part 58
• White House: Statement of Administration Policy, January 3, 2023
• Renewal of COVID-19 Public Health Emergency, February 2023
• Renewal of COVID-19 National Emergency, February 2023
• EBSA Disaster Relief Notice 2021-01
• EBSA Disaster Relief Notice 2020-01
• Joint Departments Notice in the Federal Register
• Business Group on Health: Regulatory & Compliance Update, March 2023
• Business Group on Health: Regulatory & Compliance Update, February 2023

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

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