The COVID-19 pandemic brought multiple temporary changes for ERISA-governed group health and welfare plans. Certain coverage mandates apply for only the duration of the COVID-19 “Public Health Emergency” (the PHE), and the ERISA deadline relief applies only during the COVID-19 “Outbreak Period” (the Outbreak Period).
Impact of the Public Health Emergency
The secretary of the US Department of Health and Human Services (HHS) initially declare the PHE on January 27, 2020. By law, this period can only last for 90-day increments. The secretary most recently renewed the PHE on July 15, 2022, and it is currently set to expire on October 13, 2022. The HHS secretary has the authority to terminate the public health emergency early, let it expire, or renew it, and it is currently unknown if it will be extended beyond October 13. Should it be allowed to expire, HHS will provide states with at least 60 days’ advance notice of the end of the PHE. At the time of this post no announcement has been made regarding an extension, but it is speculated that an extension is likely.
Expiration of the PHE means that:
- Plans will no longer be required to cover COVID-19 diagnostic testing and related services.
- 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.
- Plan sponsors and administrators will no longer be able to offer stand-alone telehealth benefits and other remote care services to participants who are not eligible for major medical coverage.
Impact of the Outbreak Period
The Outbreak Period is the period between March 1, 2020, and the earlier of:
- One year from the date the participant was first eligible for the relief; or
- 60 days after the announced end of the National Emergency.
The Outbreak Period continues until the President terminates it or does not issue an annual continuation notice, or a joint resolution of Congress terminates it. The most recent continuation was on issued on March 1, 2022; meaning, the national emergency will end on February 28, 2023, unless it is further extended or terminated early.
If the Outbreak Period ends, plan sponsors should note that the following deadlines will return to their pre-pandemic timeframes:
- The 30-day period (or 60-day period, if applicable) to request HIPAA special enrollment.
- The 60-day election period for COBRA continuation coverage.
- The date for making COBRA premium payments.
- The date for individuals to notify the plan of a COBRA qualifying event or new disability.
- The date for plan sponsors and administrators to provide a COBRA election notice (typically within 14 days after the plan receives notice of a qualifying event).
- The date within which individuals may file a benefit claim under a plan’s claims procedures.
- The deadlines for requesting internal and external appeals for adverse benefits determinations.
Next Steps for Employers
Should the PHE end, plan sponsors will need to consider whether they will continue to cover COVID-19 testing and out-of-network vaccines without cost-sharing, prior authorization, or other medical management requirements. Of note, plan sponsors will still be required to cover COVID-19 vaccines from in-network providers at no cost as a preventive service.
In regard to the Outbreak Period, employers must be mindful that not every participant and beneficiary’s deadline will be on the same date and consider sending communications to those whose deadlines are approaching.
Plan sponsors will also need to review and update plan documentation and participant communications to ensure all materials accurately reflect post-PHE coverage and standard COBRA, exclusions and limitations.