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New FAQs Provide Guidance on End of COVID-19 Emergencies

President Biden signed legislation ending the National Emergency earlier than initial expected and discussed in the article below. Please review our latest blog post on this.

Near the beginning of the COVID-19 pandemic, Congress passed both the Families First Coronavirus Response Act (FFRCA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES). Among other requirements, these Acts required group health plans to cover COVID-19 testing and vaccinations without cost sharing until the end of the PHE.

Through a separate action, the Departments announced the tolling of many health plan deadlines, including HIPAA special enrollment periods and COBRA-specific deadlines. These deadlines were tolled, or paused, until the earlier of one year from the date they were first eligible for relief or 60 days after the end of the National Emergency.

COVID-19 Testing and Vaccinations

On January 30, 2023, the Biden Administration announced its intention to end both the National Emergency and the PHE on May 11, 2023. With the date rapidly approaching, many plan sponsors are wondering what, if any, pandemic-era compliance responsibilities remain in effect. The FAQs confirm that group health plans will no longer be required to cover COVID-19 testing after the PHE ends. If a plan does provide coverage, it can impose cost-sharing requirements, prior authorization, or other medical management requirements. However, the Departments do encourage plans to continue to provide this coverage without cost sharing or medical management requirements after the PHE ends.

The FAQs clarify that an item or service is furnished on the date the item or service was rendered to the individual and not the date the claim is submitted. Plans should look to the earliest date on which an item or service is furnished within an episode of care to determine the date that the COVID-19 diagnostic test is rendered. For example, plan sponsors will need to be aware if a COVID-19 test is given before the PHE ends, but the laboratory analysis occurs after the end of the PHE, the plan would still cover the cost without cost-sharing.

The FAQs also make clear even when the PHE ends, employers with non-grandfathered health plans must still cover in-network COVID-19 vaccinations without cost-sharing. These vaccinations are considered preventative services under the ACA. After the end of the PHE, plans have the option of not covering out-of-network COVID-19 vaccinations or imposing cost-sharing on these vaccinations.

End of the COVID Outbreak Period

The end of the National Emergency will also bring an end to the COVID-19 Outbreak Period, which tolled deadlines for HIPAA Special Enrollment, COBRA Notice and premium payments, and claims and appeals filings. The pause on deadlines ends either at the end of the Outbreak Period (July 10, 2023) or after an individual has had a deadline tolled for one year, whichever is earlier. The FAQs note that nothing prevents a plan from allowing for a longer timeframe and are encouraged to do so. The table below provides examples based on the end of the National Emergency.

Qualifying Event Date

Normal COBRA Election Deadline

Date Election Period Ends Due to Emergency

March 1, 2022 April 30, 2022 April 30, 2023
January 1, 2023 March 2, 2023 September 8, 2023
May 1, 2023 June 30, 2023 September 8, 2023
August 1, 2023 September 30, 2023 N/A

Birth of Child

Normal HIPAA Special Enrollment Right Deadline

Date Enrollment Right Ends Due to Emergency

March 1, 2022 March 31, 2022 March 31, 2023
January 1, 2023 January 31, 2023 August 9, 2023
June 1, 2023 July 1, 2023 August 9, 2023
August 1, 2023 August 31, 2023 N/A

Notice Requirements

While the FAQs do not require notification to participants, the Departments encourage plans to notify participants and beneficiaries of the end of the emergencies. However, plan sponsors that make changes to their plan documents and/or summary plan descriptions to incorporate any of the changes due to the end of the emergencies, will need to comply with ERISA and issue any corresponding summary of material modifications (SMMs).
If a plan is terminating coverage of COVID-19 items and services mid-year and the termination would also alter the plan’s most recent summary of benefits and coverage (SBC), the plan must provide 60 days advance notice. Advance notice is not required if:

  • The plan has already notified participants that COVID-19 coverage rules apply only during the PHE (this notice must have been made during the plan year of the change); or
  • The plan provides advance notice “within a reasonable timeframe” before making the changes.

HSA Eligibility

The FAQs also confirm that HDHP plans can continue providing coverage for COVID-19 testing and treatment before the participant satisfies the minimum deductible. Normally this would make the participant ineligible to contribute to an HSA. However, the FAQs state that this practice will still be allowed until the Departments issue new guidance.

The end of the PHE and National Emergency will mostly put benefit compliance back to what it was prior to the pandemic. Plan sponsors should have plans in place now to determine what COVID-19 coverage they wish to continue and what pandemic-era compliance responsibilities will remain in effect. If you have questions, contact your OneDigital consultant.