While in many respects it appears that the COVID-19 pandemic is over, there are still numerous special rules born of the pandemic that directly or indirectly affect employers’ health plans. In this article, we will answer some questions we receive from employer plan sponsors about the special rules still in effect and how to prepare for the end of these special rules.
What is the state of the national emergency?
As we wrote earlier in the May 2020 and March 2021 articles, various deadlines related to employer plans have been extended during a COVID-19 “outbreak period”. The outbreak period began in March 2020, when then President Trump declared a national COVID-19 emergency and will end 60 days after that national emergency, which is still in effect, ends 60 days. As a reminder, below are some of the major expiration extensions:
- Extension of the deadline for filing, appealing or requesting external review of a complaint.
- COBRA election period extension, COBRA payment due date, and COBRA deadlines to notify plan of a qualifying event or new disability.
- Extension of the window of 30 or 60 days to submit a HIPAA Special Enrollment Application.
Such extensions will expire at the end of the Outbreak Period (60 days after the end of the National Emergency), or after each individual person has been entitled to specific relief for a period of one year.
Are there any other emergency statements still affecting our plans?
In addition to the national emergency, the Secretary of Health and Human Services (HHS) declared a public health emergency in January 2020 and has acted repeatedly to extend that declaration for 90-day periods. Please note, while the Public Health Emergency is in effect:
- Employer health plans must cover the cost of COVID-19 diagnostic tests and related services without any participant cost sharing, prior authorization or other medical management requirements. As of January 15, 2022, this coverage has been extended to over-the-counter (OTC) tests.
- Employers can offer a self-contained telemedicine benefit that is not subject to the Affordable Care Act and other provisions that would generally prohibit offering telemedicine benefits to employees who are also not enrolled in the employer’s primary medical coverage.
Are there any other temporary rules still in place?
- The CARES Act allowed pre-deductible coverage of telemedicine services for people with high-deductible health plans (HDHPs), including those linked to health savings accounts (HSAs), through 2021. As discussed in detail in our April article 2022, Congress took action to renew this special relief by approving the Consolidated Appropriations Act (CAA) of 2022, but this renewal is only in effect from March 31, 2022 to December 31, 2022.
- The CARES Act required employers’ health plans to cover the cost of COVID-19 vaccines while the public health emergency was in effect and that requirement is now permanent because it has become a preventative service under the rules of the Affordable Care Act which require first dollar coverage of prevention care.
- During the pandemic, the federal government covered the cost of many COVID-19-related expenses on behalf of the public, including paying for the vaccines themselves and purchasing and supplying over-the-counter test kits. These public health expenditures are likely to be temporary in nature and may cease when the national emergency and public health emergency are formally over or shortly thereafter. This is significant for employers ‘health plans because it will shift the financial burden of paying for vaccines and tests that the federal government is currently covering onto employers’ plans.
When will these special rules end?
As of the date of this article:
- The national emergency will end on February 28, 2023, in the absence of action by the White House to extend or stop it.
- The health emergency will end on 12 October 2022, in the absence of HHS action to extend that date.
- The HDHP / telemedicine provision expires December 31, 2022 unless Congress takes action again to extend it.
HHS has indicated that it will give the public at least 60 days’ notice before the formal end of the health emergency. The White House would also be expected to announce the end of the National Emergency in advance. It is also said that the White House and HHS could coordinate so that both the public health emergency and the national emergency end at the same time, but at this point it is all speculation.
Is there anything we should do to prepare for the expiration of these interim arrangements?
Most employers’ health plans have made formal and informal changes to their processes in light of the special provisions mentioned above. That said, even those employers who are on top of this may want to consider the following actions to prepare for the eventual end of the relief periods:
- At the end of the national emergency, the COBRA deadlines will have to be applied again. The plans should ensure that all COBRA-eligible individuals who have been granted an extended time period in light of the relief are properly identified in enrollment systems. This is important because from a fiduciary point of view, you will want to communicate the end date to the people concerned. Also, the end date will not be the same for all people who are in the COBRA extended election or payment window, so it will be important to keep track of all relevant dates.
- For those employers who have offered free telemedicine to HDHP participants, you should assume that you will not be able to continue that free telemedicine benefit in 2023 and plan accordingly when preparing for 2023 benefits.
- For those employers who have offered free telemedicine to all employees, regardless of whether they are enrolled in the primary medical plan, the planning should include the need to limit any free telemedicine to employees enrolled in a non-HDHP primary medical plan, in 2023 if the Public Health Emergency ends this year and in 2024 if it ends next year.
- Also with regards to planning for 2023, employers may want to consider whether their health plan will continue to cover COVID-19 testing without cost sharing or reimburse the cost of over-the-counter COVID-19 testing when that coverage is not. most required by law.
- When considering what coverage a plan would offer after the various COVID-19 relief periods have ended, that plan should take into account that the agency’s enforcement took a toll on many departments during the pandemic. For example, a toll was imposed under the Mental Health Parity and Addiction Equity Act (MHPAEA) during the pandemic if a plan covered items and services for COVID-19 testing without cost sharing. However, after the public health emergency is over, such coverage may raise parity issues at the time of assessment under the MHPAEA.
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