The National Emergencies Are Ending Next Month; Is Your Plan Ready?
On Monday, April 10, President Biden on Monday signed a bill which immediately ended the Covid-19 National Emergency, first enacted during the Trump administration in 2020. The National Emergency (“NE”) and COVID-19 Public Health Emergency (“PHE”) have been in place since early 2020, and gave the federal government flexibility to waive or modify the rules in a range of areas, including in Medicare, Medicaid, and CHIP programs, and in private health insurance.
In January 2023, President Biden stated his intention for both the NE and PHE to end on May 11, 2023. This new bill accelerates the end of the NE but the PHE is still expected to end on May 11, 2023. Although the NE ended on April 10, the DOL has informally commented that the Outbreak Period, which is used to measure several deadline extensions, will continue to run through July 10, 2023 (60 days after the previously anticipated NE end of May 11). It is anticipated that formal guidance confirming the July 10 date will be issued in the next few weeks.
To aid employers and providers with the end of the two emergencies, the Departments of Treasury, Labor, and Health and Human Services issued FAQs to provide some guidance. These FAQs cover extensions and other requirements applicable to both the NE and PHE.
One of the most important, and technical, extensions covered by the NE was the delay of certain deadlines. Deadlines related to COBRA, claims and appeals, external reviews, and HIPAA special enrollments do not begin to 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 Outbreak Period under the NE (which is expected to be July 10, 2023). Under the extensions, for example, a participant in a health plan who a COBRA election notice on October 1, 2022 has until 45 days after July 10, 2023, which is August 24, 2023, to make the initial COBRA premium payment. The initial COBRA premium payment would need to include the monthly premium payments for October 2022 through July 2023.
With the end of these extensions soon ending, plan sponsors should review their COBRA notices and administration procedures to remove any reference to the later deadlines. A best practice, but not a requirement, would be for plan sponsors to send notices to any impacted individuals that the deadline extensions are ending and information on the new deadlines.
During the PHE, plans and issuers had to cover COVID-19 tests, including over-the-counter tests, with no cost sharing. These requirements will now end when the PHE ends. This means plans will be able to impose cost-sharing, prior authorization, and medical management criteria if they so choose. Plan may choose to continue this coverage if their plan design permits.
In-network vaccines must still be covered by health plans. However, out-of-network vaccines will not need to be covered after the expiration of the PHE.
Under the PHE, employers may offer stand-alone telehealth benefits to employees who are not enrolled or eligible for the employer health plan. This relief will end at the end of the plan year that begins on or before May 11, 2023 (12/31/23 for calendar year plans) but employers may potentially continue to offer these types of benefits as an EAP after that deadline.
Impact on HDHPs/HSAs
Beginning in 2020, the IRS allowed HDHPs to provide free or reduced-cost testing and treatment for COVID. The FAQs emphasize that that first-dollar coverage of COVID testing and treatment is still permitted under HSA-compatible HDHPs until the IRS provides additional guidance.
With these upcoming changes, employers should, as mentioned above, consider providing a notice of any changes to employees. Additionally, if any of the changes are items that would impact the contents of the summary of benefits and coverage (“SBC”) must be disclosed no later than 60 days before the effective date of the change.
Additionally, plan sponsors will need to decide what, if any, changes they want to make. The end of the NE and PHE permit plan sponsors to revert back to pre-COVID practices, but generally does not require it. For the soon to be ending deadline extensions, plan sponsors should review their internal policies and work with their TPAs and/or other vendors to make sure the new deadlines are administered correctly. Finally, if any changes were made to a plan via plan amendment, a new amendment may be needed to change the plan back. Sponsors should review their plans to see if any amendments are needed now so any internal approval process does not delay their implementation.
If you have any questions about the end of the two national emergencies or the impact on any plan benefits, please contact any of Bricker Graydon’s Employee Benefits team.