After nearly three years, the time has finally come. The Biden administration announced that both the COVID-19 national emergency (NE) and the public health emergency (PHE) will end on May 11, 2023. Now it’s time for employers to prepare to unwind the changes that had huge impacts on their group health plan administration (e.g., COBRA and HIPAA deadlines) and coverage (e.g., telehealth eligibility, COVID-19 testing and vaccination without cost sharing). Employer action steps (e.g., plan documents, participant notification, coverage decisions, work with vendors) are highlighted.

Changes and Action Steps Due to the End of the NE

Three areas are impacted by the end of the NE: HIPAA special enrollment; COBRA elections, notices and premium payments; and claim processes. When the national emergency period ends on May 11, 2023, the 60-day clock will start counting down toward the end of the outbreak period (the period beginning March 1, 2020 through 60 days after the announced end of the COVID-19 national emergency). The outbreak period rules extended certain time frames to help employees maintain group health plan coverage. Plans should return to prepandemic rules 60 days after the outbreak period ends on July 10, 2023.

Effective July 11, 2023, the deadlines for the following time frames will no longer be extended. Below each time frame are steps that plan sponsors/administrators might need to take.

HIPAA Special Enrollment

• The 30-day time frame (or 60-day period, in some cases) for a participant to request HIPAA special enrollment in a group health plan after birth, adoption or placement for adoption of a child; marriage; loss of other health coverage; or eligibility for a state premium assistance subsidy
  • Next actions:
    • Notify participants that deadlines are ending and what the new deadlines are
    • Amend plan documents and summary plan descriptions (SPDs) to reflect the new deadlines
    • If the plan chooses to honor late spousal/dependent enrollments beyond the applicable 30- or 60-day time frame after the outbreak period ends, premiums should be paid on an after-tax basis for the rest of the plan year to avoid cafeteria plan concerns.

COBRA

• The 60-day time frame for a participant to elect COBRA continuation coverage
  • Next actions
    • Notify participants of the end of the extension and what upcoming election deadlines are.
• The time frame for when monthly COBRA premium payments are due
  • Next actions:
    • Notify participants of the end of the extension and their payment deadlines
    • Resume allowing at least an additional 30-day grace period if subsequent COBRA premiums are not paid on time.
• The time frame for a participant to notify the plan of a COBRA qualifying event or disability determination
  • Next actions:
    • Amend plan documents and SPDs to remove references to the extended deadlines
    • Notify plan participants of the end of the extension period.
• The 44-day deadline for plan sponsors and administrators to provide a COBRA election notice to a qualified beneficiary. This includes the 30-day time frame the employer has to notify the plan administrator plus the 14-day time frame the plan has to issue the election notice.
  • Next actions:
    • Revise initial and election notices to remove language related to the extended deadlines. Resend notices, if necessary.

Claims and Appeals

• The time frame for a participant to file a benefit claim according to the plan and the deadlines for appealing an adverse benefit determination or requesting an external review
  • Next actions:
    • Inform participants that deadline extensions are ending and new deadlines may apply
    • Amend plan documents and SPDs to reflect deadline extensions ending and new deadlines
    • Ensure the claims administrator follows the plan terms and removes all time extensions applicable to claims and appeals adopted due to the NE. Dates for deadlines must be decided on an individual-by-individual basis. Under outbreak period rules, the maximum time an action period may be suspended is 12 months from the date it was initially triggered. Some time frames may end sooner if the 12-month window has not run its course by July 10, 2023.

For specific examples of how deadlines will be impacted following the end of the NE, see Health Equity’s What you need to know about the upcoming COVID-19 National Emergency expiration.

Changes and Action Steps Due to the End of the PHE

The end of the PHE impacts group health plan COVID-19 relief measures (e.g., telehealth coverage, grandfathered plans and employee assistance plans) and mandates (e.g., covering COVID-19 tests and vaccines without cost sharing) that were put in place during the pandemic. The PHE does not require a 60-day runout period like the NE provisions do. Instead, most of these provisions expire for some or all plans immediately upon the PHE expiration date of May 11, 2023.

Relief measures and mandates that will expire with the end of the PHE include:

COVID-19 Testing

• Plans will no longer be required to cover COVID-19 diagnostic testing and related services (including tests ordered by a physician and those purchased over the counter (OTC)) without cost sharing, prior authorization or other medical management requirements.
  • Next actions:
    • Decide whether the plan will choose to continue to offer free or low-cost testing. High deductible health plans (HDHPs) offering this type of coverage may need to evaluate offerings to ensure the plan continues to qualify as an HDHP.
    • Confirm with insurers/third-party administrators (TPAs) how coverage for COVID-19 diagnostic testing-related services may change and when
    • Communicate any cost sharing and coverage changes to participants and distribute a summary of material modifications (SMM) or an updated SPD, as needed, at renewal (or within 60 days if there has been a material reduction in benefits).

COVID-19 Vaccinations

• 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. Coverage as a preventive service will continue to apply for COVID-19 vaccines on an in-network basis. This coverage generally does not apply to excepted benefits or retiree-only plans.
  • Next actions:
    • Consider whether the plan will continue to cover out-of-network vaccines without cost sharing, prior authorization or other medical management requirements. Plans wanting to continue coverage for testing without cost sharing will not be able to do so under an HDHP until the participant has satisfied the deductible.
    • Confirm with insurers/TPAs how coverage for COVID-19 vaccines may change and when
    • Communicate cost sharing and coverage changes to participants and distribute an SMM and an updated SPD, as needed, at renewal (or within 60 days if there has been a material reduction in benefits).

Standalone Telehealth

• Employers with more than 50 employees will no longer be able to offer telehealth services to employees who are not eligible for any other employer-sponsored group health plan (without being subject to certain federal laws related to group health plans), effective at the end of the plan year after May 11, 2023 for non–calendar year plans (and January 1, 2024 for calendar year plans).
  • Next actions:
    • Inform participants of the decision to end benefits within 60 days of the decision
    • Discuss with insurer/TPA and review telehealth eligibility terms to ensure any telehealth services that are offered are compliant with ACA and other federal laws 
    • Discuss with legal counsel whether COBRA continuation coverage must be offered, as this is not clear.

Note: The CARES Act (2020) permitted HDHPs to provide telehealth services for participants before meeting their deductible and without affecting their eligibility to contribute to a health savings account during the pandemic. The Consolidated Appropriations Act, 2023 extended the telehealth safe harbor, which was set to expire December 31, 2024. Because of the extension, this telehealth provision will not be affected by the end of the COVID-19 emergencies.

Employee Assistance Programs (EAPs)

• Employers that wish to continue to offer an EAP that is considered an excepted benefit, covering COVID-19 diagnosis, testing and preventive care, must comply with ACA and other federal laws.
  • Next actions:
    • Consult with legal counsel to determine whether continuing to include COVID-19 testing and/or preventive services in the EAP will risk the EAP’s status as an excepted benefit
    • Update plan documents and SPDs and notify participants of the decision, if necessary.

Grandfathered Plans

• Group health plans with grandfathered status may reverse changes made during the NE or PHE that added benefits or eliminated cost sharing requirements for the diagnosis and treatment of COVID-19 or for telehealth services without losing grandfathered status.
  • Next action:
    • Inform participants that the changes made during the NE or PHE are being reversed.

Reminders

In addition to the steps above, here are reminders for plans as the NE/PHE end nears.

• Imminent deadlines. Think about extending any imminent deadlines to minimize the impact on plan participants and beneficiaries (e.g., plan sponsors could choose to extend any deadlines that are expected to expire when the COVID-19 emergencies end).
• Mental health parity. Consider whether any continued coverage may cause parity problems under the Mental Health Parity and Addiction Equity Act.
• Special enrollment rights. Millions could lose Medicaid and Children’s Health Insurance Program (CHIP) coverage following the end of the COVID-19 emergencies. This could trigger special enrollment rights under an employer-sponsored group health plan.
• Recordkeeping. Keep records of the plan’s compliance with rules over the past three years, as federal regulators and state agencies may still audit plans for compliance with ongoing or expiring rules.
• Consult with legal counsel to ensure all applicable laws are being met.

Resources

COVID-19 Emergency Periods Ending, Burnham Benefits, February 6, 2023

The end is near: The COVID-19 National and Public Health Emergencies are scheduled to end in May, Lockton, February 3, 2023

Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.