The End of the COVID-19 National Emergency/Public Health Emergency:
Update on Recent Changes that Impact Group Health Plans
Quick Summary
The COVID-19 pandemic triggered several federal emergencies, but two of them directly impacted group health plans: the Public Health Emergency and the National Emergency. Each had different start and end datesand each served a different purpose.
- The Public Health Emergency, declared by Health and Human Services (HHS), was effective January 2020 and required group health plans to cover certain COVID related health services like vaccines and testing at no cost.
- The National Emergency, declared by the President, was effective March 2020 and did not directly impact group health plans. However, the “Outbreak Period” that was established by the Department of Labor (DOL) and Treasury (IRS), and that ran parallel to the National Emergency, did directly impact group health plans.
- The “Outbreak Period” extended certain deadlines under HIPAA, COBRA and CLAIMS/APPEALS rules for group health plans. During this period, these deadlines were extended and did not terminate until the earlier of:1) one year, or 2) the end of the “Outbreak Period”
- Outbreak Period was set to end 60 days after the National Emergency ends, unless the DOL and Treasury extend that timeframe
- The “Outbreak Period” extended certain deadlines under HIPAA, COBRA and CLAIMS/APPEALS rules for group health plans. During this period, these deadlines were extended and did not terminate until the earlier of:1) one year, or 2) the end of the “Outbreak Period”
On January 30, 2023, President Biden announced plans to end the two COVID related emergencieson May 11, 2023.
- Both the COVID National Emergencyand the Public Health Emergencywere set to expire in March and April 2023, respectively, but Biden extended both those dates to May 11, 2023 to end them on the same date
- Under the existing schedule, the “Outbreak Period” associated with the National Emergency would end 60 days after the National Emergency, on July 10, 2023
On March 29, 2023 the DOL, Treasury and HHS issued updated FAQs that suggested the “Outbreak Period” would possibly end more than 60 days after the end of the National Emergency.
On April 4, 2023Congress presented to the President a Joint Resolution that, if signed by the President, would end the National Emergency immediately (sooner than May 11, 2023).
On April 10, 2023 the President signed the Joint Resolution to immediately end the National Emergency.
- This meant the “Outbreak Period” would end on June 9, 2023 (60 days after end of National Emergency) instead of July 10, 2023.
- However, the DOL informally commented that end of the “Outbreak Period” will remain on July 10, 2023 to avoid potential confusion and changes to administrative processes already in progress. Formal guidance confirming the July 10, 2023date is expected soon.
May 11, 2023is still the scheduled Public Health Emergency end date.
For more information and to learn how the end of the National Emergency and the Public Health Emergency affects group health plans, keep reading.
The Public Health Emergency
A Public Health Emergency (PHE) is declared by the Secretary for the U.S. Department of Health and Human Services (HHS) due to a significant infectious disease outbreak. It lasts for 90 days, can be renewed, terminated early, or allowed to expire. HHS declared the COVID Public Health Emergency effective January 27, 2020and continuously renewed it multiple times. The most recent renewal was on January 11, 2023with a promise to provide at least 60 days’ notice before the end date.
When a PHE is declared, HHS has authority to issue temporary health care requirements. Under the COVID PHE, HHS added the following requirements to group health plans:
- Must cover COVID vaccines/boosters without cost sharing and without pre-authorization for both in-network and out-of-network providers
- Must cover COVID diagnostic testing and testing related services w/o cost sharing and pre-authorization
- On January 15, 2022this expanded to covering up to 8 over-the-counter (OTC) home tests per month without doctor order or prescription
- Home testing kits must be approved by the FDA
- Can limit reimbursement cost to $12.00
- On January 15, 2022this expanded to covering up to 8 over-the-counter (OTC) home tests per month without doctor order or prescription
- May offer stand-alone telehealth benefits to individuals who are not eligible for coverage under any group health plan offered by employer
When the PHE ends on May 11, 2023, group health plans will have some remaining requirements as well as some options. Sponsors of group health plans should be aware of the following requirements and options and should plan now and decide in advance how they will proceed after the PHE ends:
- Requirements for group health plans
- Must continue to cover COVID-19 vaccines at no cost with in-network providers
- Options for group health plans
- May continue to cover COVID-19 vaccines at no cost (and no pre-auth) with out-of-network providers
- May continue to cover COVID-19 tests (provider and/or over-the-counter home test) at no cost and no pre-auth
- Not allowed for group health plans
- May NOT offer stand-alone telehealth benefits to individuals who are not eligible for coverage under any group health plan offered by employer
- However, if a group health plan is currently offering this option when the Public Health Emergency ends, the plan may continue that coverage through the end of that plan year. There is no need for a mid-year change.
The National Emergency
A National Emergency (NE) is declared by the U.S. President and may last for one year but can be renewed, terminated early or allowed to expire. The President declared a COVID NE effective March 1, 2020. The President extended the EN in 2021 and again in 2022.
On April 29, 2020the U.S. Department of Labor (DOL) and the U.S. Department of Treasury (Treasury) issued regulations that established an “Outbreak Period” (OP) that would run parallel to the NE and would end 60 days after the end of the NE. The OP authorized the extension of specific deadlines related to retirement, health and welfare plans that would end one year from the date the plan (or individual’s) deadline period would have commencedor would end with the end of the OP (60 days after the end of the NE) whichever comes first.
The OP extended deadlines that impact group health plans are found under HIPAA, COBRA and Claims and Appeals rules as follows:
- HIPAA Special Enrollment Rights
- The 30-day period (or 60-day period, if applicable) to request HIPAA special enrollment.
- COBRA
- The 60-day election period for COBRA continuation coverage.
- The date for making COBRA premium payments (usually 45 days after the day of initial COBRA election with a grace period of at least 30 days for subsequent premium payments)
- The date for individuals to notify the plan of a COBRA qualifying event or new disability (usually 60 days from date of event, loss of coverage or disability determination)
- The date for plan sponsors and administrators to provide a COBRA election notice
- Claims and Appeals
- 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.
The National Emergency ended on April 10, 2023. When the National Emergency ends, the 60-day clock counting down the end of the “Outbreak Period” starts ticking. After the 60 days (or when the one-year extension expires, if earlier) the deadline extensions end.
The 60 days end on June 9, 2023, but the DOL informally announced that the end of the “Outbreak Period” would remain on the originally anticipated date on July 10, 2023. This is to avoid potential confusion and changes to administrative processes already in progress. Formal guidance confirming the July 10, 2023date is expected sometime in the coming weeks.
Sponsors of group health plans should be aware of these deadlines and should start planning now. It also may be valuable to consider the following:
- Not every participant deadline will land on the same date, calculate each situation case by case
- For example, some deadlines will end prior to July 10, 2023because the one year extension may come sooner.
- It may be valuable to send advance communications to participants with deadlines that will end earlier than the one yearmark due to the forthcoming end of the OP
- It is possible to allow an additional short extension to deadlines (e.g.provide 30 additional days for all affected participants) but it is important to confirm with carrier/TPA
Summary
The Public Health Emergencywill expire on May 11, 2023. TheNational Emergencyended on April 10, 2023and the“Outbreak Period” that runs parallel with the National Emergency will end on July 10, 2023 (not 60 days after April 10, 2023which is June 9, 2023).
Employers that sponsor group health plans should be aware of these important dates and should plan in advanceto proactively address the impact of the end of the COVID-related emergencies on their group health plan. Any changes that need to be made should be discussed with the carrier and/or TPA and group health plan materials, communications and documents, under ERISA rules, should accurately reflect those changes.
Postscript on Telehealth Coverage
As mentioned under the Public Health Emergency section above, employers were temporarily allowed to offer stand-alone telehealth benefits to individuals who are not eligible for coverage under their group health plan. This leniency terminates at the end of the Public Health Emergency.
Separately, Congress created temporary exceptions to certain HSA rules and telehealth in response to the COVID-19 pandemic. This relief isnot linked to the Public Health Emergency, the National Emergency or the “Outbreak Period”.
Summary and Timeline for these separate rules:
- As of January 1, 2020the Coronavirus Aid, Relief and Economic Security (CARES) Act allowed high deductible health plans (HDHPs) compatible with health savings accounts (HSAs) to provide benefits for telehealth or other remote care services before plan deductibles were met without impacting HSA eligibility.
- On March 15, 2022the Consolidated Appropriations Act (CAA) of 2022 was signed. It included an extension of the CARES Act telehealth relief and allowed the temporary extension to continue through end of 2022
- On December 29, 2022, the Consolidated Appropriations Act (CAA) of 2023 was signed. It included an extension of this relief again but this time for two years through the end of 2024
