Earlier this week, President Biden announced his intent to end both the COVID-19 National Emergency and the COVID-19 Public Health Emergency (PHE) on May 11, 2023. Once these emergencies end, group health plans will shed some pandemic-related requirements, but also some pandemic-related relief. This client alert discusses these important changes.
National Emergency
Individual Deadline Extensions. Various individual deadlines were tolled for one year or until 60 days after the end of the National Emergency, whichever is earlier. Assuming the National Emergency ends on May 11, the tolling period for the following deadlines will end on July 10, 2023:
- Electing COBRA and making COBRA premium payments
- Submitting claims and appeals
- Requesting (and providing information for) external review
- Notifying the plan of a qualifying event or disability
- Requesting special enrollment
Plan Deadline Extensions. Plans were given similar relief. Instead of being held to the pre-pandemic deadlines, plans were required to provide certain disclosure documents (such as summaries of material modifications or COBRA election notices) as soon as administratively practicable. Assuming the National Emergency ends on May 11, the plan deadline relief will end on July 10, 2023.
Public Health Emergency
COVID Testing. Currently, employer group health plans must cover COVID tests and certain related items and services. After the end of the PHE, this coverage is no longer required.
COVID Vaccines. Currently, employer group health plans must cover COVID vaccines without cost-sharing, both in-network and out-of-network. After the end of the PHE, plans may impose cost-sharing for out-of-network vaccines or may choose not to cover out-of-network vaccines at all.
Stand-Alone Telehealth Plans. Currently, a large employer may offer a stand-alone telehealth plan that is exempt from many of the rules under the Affordable Care Act. The exemption lasts until the end of the latest plan year that begins during the PHE (until 12/31/2023 for calendar-year plans).
HDHPs, HSAs and Telehealth.
- Currently, a high-deductible health plan (HDHP) may offer telehealth benefits to enrollees who have not yet met the deductible, without jeopardizing enrollees' eligibility for a health savings account (HSA). This relief lasts until the end of the plan year that begins in 2024 (until 12/31/2024 for calendar-year plans).
- Currently, an employer can offer telehealth benefits outside of an HDHP (for example, in a stand-alone telehealth plan), without jeopardizing enrollees' eligibility for an HSA. This relief lasts until the end of the plan year that begins in 2024 (until 12/31/2024 for calendar-year plans).
HDHPs, HSAs, and COVID Testing and Treatment. Currently, an HDHP may offer COVID testing and treatment to enrollees who have not yet met the deductible, without jeopardizing enrollees' eligibility for an HSA. This relief continues until further notice by the IRS. We expect that the IRS will soon provide guidance on the termination date for this relief.
MHPAEA. Currently, when calculating "parity" under the Mental Health and Addiction Equity Act (MHPAEA), plans may disregard benefits for COVID testing items and services that are required to be covered without cost sharing. After the end of the PHE, this relief will no longer be available.
Both
EAPs. While either the National Emergency or the PHE is in place, an Employee Assistance Program (EAP) will not be treated as providing benefits that are "significant in the nature of medical care," solely because the EAP offers COVID testing and diagnosis. After the end of the National Emergency and the PHE, this relief will no longer be available.
Plan Notice Enforcement. Currently, plans may provide notice of a material modification as soon as reasonably practicable, if the modification:
- Provides greater coverage for testing and treatment of COVID,
- Adds telehealth benefits, or
- Reduces or eliminates cost sharing for telehealth benefits.
After the end of the National Emergency and the PHE, this relief will no longer be available.
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If you have questions or concerns regarding this client alert, please contact the authors, any member of Venable's Employee Benefits and Executive Compensation Group, or your regular Venable lawyer.