How Plan Sponsors can Prepare for End of COVID Emergency Declarations

The following article was originally posted on the Mercer US Health News blog. You can find this article along with more health news content here.

By Lindsey Sommers, Principal, Regulatory Resources Group; Christine Livingston, Senior Associate, Mercer; Kenneth Morgan, Principal, Legal Consultant, Mercer; and Dorian Smith, Partner, Mercer’s Law & Policy Group

The Biden administration announced that the COVID-19 public health emergency (PHE) and national emergency will end on May 11, 2023. The expiration of these emergency declarations will have a significant impact on employer-sponsored group health plans. Since the COVID-19 pandemic began, there’s been a myriad of group health plan COVID-19 relief measures. Some apply during the PHE, others are tied to the national emergency, and some are permanent.

Relief measures tied to the public health emergency

• Nongrandfathered group health plans must cover without cost sharing COVID-19 vaccines (all necessary doses and boosters, including administration) and related preventive services from both in-network and out-of-network providers.
• Group health plans must provide COVID-19 diagnostic testing and related services without any participant cost sharing, prior-authorization requirements or other medical-management standards whenever a licensed healthcare or otherwise authorized provider deems the testing medically appropriate. Plans must also cover without cost sharing home over-the-counter COVID-19 diagnostic tests, without a healthcare provider’s involvement.
• An employee assistance program may remain an excepted benefit even if coverage for COVID-19 diagnostic testing is added. (This is also allowed during the national emergency.)
• Employers may offer stand-alone telehealth to employees who are not eligible for other health coverage from that employer and avoid many group health plan mandates under ERISA, the ACA and other laws.
• The 60-day advance notice requirement for certain changes to a summary of benefits and coverage is waived.
• Group health plans may maintain grandfathered status even if they later revoke benefits added during the PHE.
• Some HIPAA privacy rules are relaxed.

Other relief tied to the national emergency & outbreak period

During the COVID-19 national emergency, group health plans must extend certain participant deadlines that would have expired during the “outbreak period”. The outbreak period began March 1, 2020, and will end July 10, 2023 (60 days after the end of the COVID-19 national emergency). The national emergency and outbreak period relief extends the:

• 30-day period (or 60-day period in certain circumstances) to request special enrollment rights under HIPAA.
• 60-day COBRA election period, the timeframe for making initial and on-going timely COBRA premium payments and the date for individuals to notify the plan of a COBRA qualifying event or determination of disability.
• Deadlines for participants to file a benefit claim, to appeal a denied claim, and to request or perfect an external review of a denied claim.
• The required extensions to the claims filing deadlines also extends the run-out periods for health flexible spending arrangements (general and limited purpose).

The applicable periods will be disregarded until the earlier of one year from the date a particular individual or plan was first eligible for relief or July 10, 2023 (the end of the outbreak period). Once the relief expires, the paused periods for individuals and plans will resume.

Preparing for the emergency declarations to end

In anticipation of the COVID-19 PHE and national emergency ending, plan sponsors should consider the following actions:

• Review group health plan terms for COVID-19-related coverage, including testing, vaccines and treatment. For example, decide whether to continue to cover without cost sharing (i) COVID-19 vaccines and related preventive services and (ii) COVID-19 diagnostic testing (including at home over-the-counter COVID-19 testing) and related services.
• Review benefit terms or offerings made under temporary COVID-19 relief laws and guidance. For example, as described above, review the expiring flexibilities applicable to certain employee assistance programs, as well as stand-alone telehealth offered to non-benefit eligible employees.
• Review grandfathered health plans to determine whether to revoke (without losing grandfathered status) any benefits added during the PHE.
• Adopt any plan amendments necessary to implement changes in benefit terms or offerings as a result of the expiration of the PHE or national emergency.
• Revise participant communications, including SPDs and SBCs, to eliminate special COVID-19 provisions that may have been included and describe changes in benefit terms or offerings and notices that address the winding down of extended deadlines. Furnish such documents in a timely manner.
• Confirm the proper winding down of extended deadlines for claims and appeals, HIPAA special enrollment elections, and COBRA elections and payments with insurers and third-party administrators, and ensure all related forms and materials will be updated in a timely manner.

For a more detailed analysis, please review Section 4 of Mercer’s GRIST: Top 10 compliance issues for health and leave benefits in 2023.

Predeductible telehealth coverage isn’t tied to the emergency declarations

Recently enacted legislation provided a two-year extension of COVID-19 telehealth relief for health savings account (HSA)-qualifying high-deductible health plans (HDHPs). The relief maintains the flexibility for HSA-qualifying HDHPs to cover telehealth and other remote care services on a predeductible basis. In addition, the relief allows an otherwise HSA-eligible individual to receive predeductible coverage for telehealth and other remote care services from a stand-alone vendor outside of the HDHP. In both cases, the predeductible telehealth coverage won’t jeopardize an individual’s eligibility to make or receive HSA contributions. This important relief is not tied to either the PHE or national emergency described above and will expire on Dec. 31, 2024, for calendar-year plans (later for noncalendar-year plans).