By Danielle M. Moore and Amy A. Ciepluch
While it feels in many respects like the COVID-19 pandemic is over, there are still numerous special pandemic-born rules in place that directly or indirectly affect employer health plans. In this article, we will answer some questions that we get from employer plan sponsors about the special rules that are still in effect and how to prepare for the end of these special rules.
What is the status of the national emergency?
As we previously wrote about in May 2020 and March 2021 articles, various employer plan-related deadlines are extended during a COVID-19 “Outbreak Period.” The Outbreak Period began in March, 2020, when then President Trump declared a COVID-19 National Emergency, and it will end 60 days after the end of that National Emergency, which is still in effect. As a reminder, the following are some of the key deadline extensions:
- Extension of the deadline to file, appeal or request external review of a claim.
- Extension of the COBRA election period, COBRA payment due date, and COBRA deadlines to notify the plan of a qualifying event or new disability.
- Extension of the 30-day or 60-day window to submit a HIPAA special enrollment request.
These extensions will end at the end of the Outbreak Period (60 days after the end of the National Emergency), or after any individual person has been eligible for any specific relief for a period of one year.
Are there any other emergency declarations that still affect 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. As a reminder, while the Public Health Emergency is in effect:
- Employer health plans must cover the cost of COVID-19 diagnostic testing and related services without any participant cost-sharing, or need for prior authorization or any other medical management requirements. Effective January 15, 2022, that coverage extended to over-the-counter (OTC) tests.
- Employers may offer a standalone telehealth benefit that is not subject to the Affordable Care Act and other provisions that would generally prohibit a telehealth benefit offering to employees who are not also enrolled in the employer’s major medical coverage.
Are there any other temporary rules still in effect?
- The CARES Act allowed for pre-deductible coverage of telehealth services for people with high-deductible health plans (HDHPs), including ones linked to health savings accounts (HSAs), through 2021. As discussed in detail in our April 2022 article, Congress acted to renew this special relief by passing the Consolidated Appropriations Act (CAA) of 2022, but that renewal is only in effect from March 31, 2022 through December 31, 2022.
- The CARES Act required employer health plans to cover the cost of COVID-19 vaccines while the Public Health Emergency is in effect, and that requirement is now permanent because it has become a preventive service under Affordable Care Act rules that require first dollar coverage of preventive care.
- During the pandemic the federal government has 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 testing kits. These public health expenditures are likely temporary in nature, and they may end when the National Emergency and Public Health Emergency have formally ended or shortly thereafter. This is significant to employer health plans because this will shift the financial burden of paying for vaccines and testing that the federal government is currently covering to employer plans.
When will these special rules end?
As of the date of this Article:
- The National Emergency will end on February 28, 2023, absent action by the White House to extend or cut it short.
- The Public Health Emergency will end on October 12, 2022, absent action by HHS to extend that date.
- The HDHP/telehealth provision expires on December 31, 2022 unless Congress acts again to extend it.
HHS has indicated that they will give the public at least 60 days’ notice before the formal end to the Public Health Emergency. We would also expect that the White House would give advance notice of an end to the National Emergency. There is also some talk that the White House and HHS might coordinate so that both the Public Health Emergency and National Emergency end at the same time, but that is just speculation at this point.
Is there anything we should be doing to get ready for when these temporary provisions expire?
Most employer health plans have made formal and informal adjustments to their processes in light of the special provisions noted above. That said, even those employers that are on top of this may want to consider the following actions to prepare for the eventual end of the relief periods:
- When the National Emergency ends, the COBRA deadlines will again need to be enforced. Plans should make sure that all COBRA-eligible individuals granted extended timeframes in light of the relief are properly identified in enrollment systems. This is important because from a fiduciary standpoint, you will want to communicate the end date to the impacted individuals. In addition, the end date won’t be the same for all individuals who are in the extended COBRA election or payment window, so it will be important to have all relevant dates tracked.
- For those employers that have offered free telehealth to HDHP participants, you should assume that you will not be able to continue that free telehealth benefit in 2023 and plan accordingly during your 2023 benefits preparation.
- For those employers that have offered free telehealth to all employees, regardless of whether they are enrolled in your major medical plan, your planning should include the need to limit any free telehealth to employees enrolled in a non-HDHP major medical plan in 2023 if the Public Health Emergency ends this year and in 2024 if it ends next year.
- Also with respect to 2023 planning, employers may want to consider whether their health plan will continue to cover COVID-19 testing with no cost-sharing or reimburse the cost of over-the- counter COVID-19 tests when that coverage is no longer required by law.
- In considering what coverage a plan would offer after the end of the various COVID-19 relief periods, that plan should take into consideration that agency enforcement has tolled for many departments during the pandemic. For instance, certain enforcement under the Mental Health Parity and Addiction Equity Act (MHPAEA) was tolled during the pandemic if a plan covered COVID-19 testing items and services without cost-sharing. However, upon the end of the Public Health Emergency, such coverage may raise parity concerns upon assessment under the MHPAEA.
[SOURCE: FOLEY & LARDNER LLP]