COVID-19 Public Health and National Emergencies to End May 11—or Earlier

With the COVID-19 public health emergency and the presidential declaration of national emergency intended to end on May 11 and the US government recently issuing guidance on unwinding these emergency declarations, this LawFlash breaks down the relief tied to each declaration and the next steps for plan sponsors.

As noted in an ML BeneBits blog post, the Biden administration announced that it intends to end the presidential declaration of national emergency and the US Department of Health and Human Services (HHS) public health emergency attributable to the COVID-19 pandemic on May 11, 2023.

On March 29, 2023, the HHS and the US Department of Labor and the Department of the Treasury (collectively, Departments) issued Frequently Asked Questions (FAQs) to provide guidance to plan sponsors on unwinding the emergency declarations.

Also on March 29, the Senate passed a bill to end the national emergency, and President Biden is expected to sign it into law. Although unclear, it appears the bill will become effective upon signature, which means the presidential declaration of national emergency could end earlier than the HHS public health emergency. This means group health plans may have to contend with two separate timeframes in unwinding the emergency declarations or choose to extend the timeframes associated with the national emergency for administrative ease.

PRESIDENTIAL DECLARATION OF NATIONAL EMERGENCY

The national emergency provided relief to plan sponsors and group health plan participants. The relief provided that certain deadlines (as described below) under the Employee Retirement Income Security Act of 1974 (ERISA) are suspended until the earlier of one year from the date of the event or until 60 days after the end of the national emergency.

The plan sponsor relief under the national emergency includes the following:

• Extension of timeframes for disclosure of documents required under Title I of ERISA
• Suspended timeframes for a plan sponsor to provide a Consolidated Omnibus Budget Reconciliation Act (COBRA) election notice to qualified beneficiaries

While the above timeframes were extended or suspended under the national emergency, most plan sponsors likely made timely disclosures of plan documentation and COBRA election notices so there should be minimal impact on the above plan sponsor relief components of the national emergency.

The participant relief under the national emergency includes the following:

• The 30-day period (or 60-day period, if applicable) to request a special enrollment
• The 60-day election period for COBRA continuation coverage
• The date for making COBRA premium payments
• The date for individuals to notify the plan of a qualifying event or determination of disability under COBRA
• The date within which individuals may file a benefit claim under the group health plan’s claims procedures
• The date within which claimants may file an appeal of an adverse benefit determination under the group health plan’s claims procedures
• The date within which claimants may file a request for an external review after receipt of a final internal adverse benefit determination
• The date within which a claimant may file information to perfect a request for external review upon finding that the request was not complete pursuant to applicable appeal rules

If the national emergency ends on May 11, 2023, as intended, any suspended timeframes noted above (i.e., anyone who experienced an event between July 11, 2022, through July 10, 2023) will begin to count down effective July 10, 2023. For example, if a participant experienced a COBRA-qualifying event and lost coverage on April 1, 2023, the 60-day deadline for the qualified beneficiary to make a COBRA election begins to count down on July 10, 2023 (or will have to be made on or before September 8, 2023). The same is true for any other suspended timeframe noted above.

If President Biden ends the national emergency sooner, the suspended time frames will begin to count down 60 days from that date. As noted above, for administrative ease, plan sponsors may decide to extend the suspended timeframes to a date that is later than the administration’s announced end of the national emergency, in particular if it ends earlier than initially anticipated.

Next Steps

• While the FAQ guidance does not require notification to participants, it strongly encourages plan sponsors to notify participants and beneficiaries of the conclusion of the national emergency.
• Plan sponsors that amended legal plan documents and/or summary plan descriptions to incorporate the foregoing requirements will need to amend plan documents and/or issue SMMs along with any participant communication materials (or have the participant communication materials also serve as an SMM).
• Considering the Senate bill noted above, plan sponsors who want to terminate suspended timeframes without any extensions, should be prepared to notify participants and qualified beneficiaries of the intended conclusion of the national emergency and its impact earlier than initially anticipated. Notification may require a coordinated effort with the group health plan’s COBRA administrator.
• While plan sponsors may elect to draft communication that terminates the suspended timeframes described above 60 days after the end of the national emergency, given the uncertainty on what that date may be, it may be administratively simpler to extend these timeframes until the end of the calendar year, although this may present certain challenges for fiscal year plans.

HHS DECLARATION OF PUBLIC HEALTH EMERGENCY

COVID-19 Testing and Related Services

The public health emergency requires group health plans to cover COVID-19 diagnostic testing and related services (including tests administered by providers and over-the-counter tests) without cost-sharing (i.e., deductibles, co-pays, or co-insurance), prior authorization, or other medical management requirements.

Upon the conclusion of the public health emergency, while the Departments encourage continued coverage, group health plans are no longer required to cover COVID-19 diagnostic tests and related services as noted above and may subject the benefits to the group health plans deductible and out-of-pocket requirements. The FAQs provide the following additional guidance:

• A COVID-19 diagnostic test or related service is considered furnished on the date it was rendered to the participant (or for an over-the-counter COVID-19 test, the date the test was purchased) and not the date the claim is submitted to the group health plan. Group health plans should look to the earliest date an item or service is furnished with an episode of care to determine the date that a diagnostic test or related services is rendered.
• Until further guidance is issued, any high-deductible health plan may continue to cover COVID-19 diagnostic testing or related services (including medical care services) upon the conclusion of the public health emergency, without jeopardizing the high-deductible status of the group health plan and HSA eligibility.

COVID-19 Vaccines

The public health emergency also required group health plans to cover COVID-19 vaccines (including booster doses) from in-network and out-of-network providers without cost sharing, prior authorization, or other medical management requirements.

The FAQs clarify, for non-grandfathered plans, coverage of COVID-19 vaccines (including booster doses) at no cost sharing continues to apply upon the conclusion of the public health emergency for in-network providers and is subject the preventive care requirements. However, nothing in the preventive care services regulations requires coverage delivered by an out-of-network provider if the plan has an in-network provider. However, consistent with preventive care requirements, a group health plan must cover an out-of-network provider if it does not have an in-network provider who can provide a vaccine.

Mental Health Parity

Finally, under the public health emergency, group health plans were able to disregard benefits for COVID-19 diagnostic testing and related services, required to be covered at no cost sharing, for purposes of parity under the Mental Health Parity and Addiction Equity Act (MHPAEA). The FAQs did not extend this relief, and group health plans must now ensure that coverage of COVID-19 diagnostic testing and related services complies with MHPAEA.

Next Steps

• Plan sponsors should consider how coverage for COVID-19 testing and vaccines will continue under its group health plan and communicate any changes to participants.
• Plan sponsors should ensure MHPAEA compliance with continued coverage for COVID-19 testing and related services (with or without cost-sharing).
• Plan sponsors that amended legal plan documents and/or summary plan descriptions to incorporate the foregoing requirements will need to amend plan documents and/or issue SMMs along with any participant communication materials (or have the participant communication materials also serve as an SMM).
• Any change that impacts the summary benefits of coverage will require 60-day advance notification.

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