Preparing for the End of COVID-19 Emergency Periods: To-Dos for Plan Sponsors and Administrators

The COVID-19 pandemic brought multiple temporary changes for ERISA-governed group health and welfare plans. Certain coverage mandates apply for only the duration of the COVID-19 public health emergency (the Public Health Emergency), while certain ERISA deadline relief applies only during the COVID-19 outbreak period (the Outbreak Period). This LawFlash provides an overview of these two similar—but not identical—legal COVID-19 emergency periods, as well as practical guidance for plan sponsors and administrators anticipating the announced end of the special COVID-19 rules.

Public Health Emergency

The secretary of the US Department of Health and Human Services (HHS) used authority under Section 319 of the Public Health Service Act to initially declare the Public Health Emergency as of January 27, 2020. By law, the Public Health Emergency can only last for 90-day increments. The HHS secretary has the authority to terminate the Public Health Emergency early, let it expire, or renew it.

Because the secretary most recently renewed the Public Health Emergency on July 15, 2022, the Public Health Emergency is currently set to expire in mid-October 2022.

Legal Changes

Though we currently anticipate the Public Health Emergency will continue until October 13, 2022, Biden-Harris administration representatives have announced that HHS will provide states with at least 60 days’ advance notice of the end of the Public Health Emergency.

Therefore, now is a good time for plan sponsors and administrators to start to plan for what will happen when the Public Health Emergency officially ends:

• Plans will no longer be required 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.
• Plans will no longer be required to cover COVID-19 vaccines—including booster doses—from out-of-network providers without cost-sharing, prior authorization, or other medical management requirements.
• Plan sponsors and administrators will no longer be able to offer stand-alone telehealth benefits and other remote care services to participants who are not eligible for major medical coverage.

To-Dos

• Consider whether your plan will continue to cover COVID-19 testing and out-of-network vaccines without cost-sharing, prior authorization, or other medical management requirements.
• Remember that statutory changes flowing from the CARES Act require your plan to continue to cover COVID-19 vaccines from in-network providers at no cost as a preventive service.
• Remember that the Public Health Emergency suspended certain enforcement actions under the Mental Health Parity and Addiction Equity Act (MHPAEA) related to the coverage of COVID-19 testing items and services without cost-sharing, prior authorization, or other medical management requirements—and make sure that any post–Public Health Emergency coverage does not cause parity problems.
• Review plan documentation and participant communications to ensure all materials accurately reflect post–Public Health Emergency coverage, exclusions, and limitations.

Outbreak Period

The Outbreak Period is the period between March 1, 2020, and the earlier of (a) one year from the date an individual is first eligible for relief from certain ERISA deadlines or (b) 60 days after the announced end of the national emergency due to COVID-19, which is set by the US president.

Former President Trump used authority under Section 201 of the National Emergencies Act to initially declare a COVID-19-related national emergency as of March 1, 2020. By law, the national emergency continues until (1) the president does not issue an annual continuation notice, (2) the president terminates it, or (3) a joint resolution of Congress terminates it.

Because President Biden most recently issued an annual continuation notice as of March 1, 2022, the national emergency will end on February 28, 2023 (absent additional action to extend it further or terminate it early).

Legal Changes

Assuming the 60-day clock counting down the end of the Outbreak Period will start ticking on February 28, 2023, plan sponsors should note that the following deadlines will revert to their shorter pre-pandemic lengths:

• The 30-day period (or 60-day period, if applicable) to request HIPAA 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 COBRA qualifying event or new disability.
• The date for plan sponsors and administrators to provide a COBRA election notice (typically within 14 days after the plan receives notice of a qualifying event).
• The date within which individuals may file a benefit claim under a plan’s claims procedures.
• The deadlines for requesting internal and external appeals for adverse benefits determinations.

To-Dos

• Remember that not every participant and beneficiary’s deadline will be on the same date and consider sending communications to those whose deadlines are quickly approaching.
• Consider extending any imminent deadlines to minimize the impact on participants and beneficiaries—a plan fiduciary could decide to extend any deadlines that are expected to expire in April 2023 for a period of up to 30 or 60 days.
• Review plan documentation and participant communications to ensure all materials accurately reflect that the above deadlines are no longer extended and remove any reference to the Outbreak Period.

What About HDHP Telehealth Relief?

While not connected to the Public Health Emergency or the Outbreak Period, the CARES Act temporarily permitted pre-deductible coverage of telehealth services for people with high-deductible health plans (HDHPs) without that coverage jeopardizing health savings account (HSA) eligibility for plan years beginning on or before December 31, 2021.

Effective April 1, 2022, Congress extended this first-dollar coverage relief through December 31, 2022.

Legal Changes

Though many hope this relief becomes permanent beyond 2022, plan sponsors and administrators should not count on further extensions. Without additional action, plan sponsors and administrators should assume that offering free telehealth to HDHP participants will not be available for plan years beginning on or after January 1, 2023.

To-Dos

• Either limit free or pre-deductible telehealth services to participants enrolled in non-HDHP coverage or limit free or pre-deductible telehealth to services that do not constitute significant benefits in the nature of medical care.
• Consider requiring employees enrolled in the HDHP to pay fair market value for telehealth services before meeting their deductibles.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following:

Boston
Lisa H. Barton

Chicago
Saghi Fattahian
Lindsay M. Goodman
Daniel R. Salemi

New York
Craig A. Bitman

Philadelphia
Robert L. Abramowitz
Robert M. Hunter
Amy Pocino Kelly
Emily M. Rickard
David B. Zelikoff

Pittsburgh
John G. Ferreira
Matthew H. Hawes
R. Randall Tracht

San Francisco/Seattle
Claire P. Rowland

Washington, DC
Althea R. Day
Allison J. Fepelstein
Steven P. Johnson
Gregory L. Needles
Linda A. Way-Smith
Jonathan Zimmerman