On March 29, 2023, the U.S. Senate voted to end the COVID-19 National Emergency declaration (“National Emergency”) early; it was previously slated to end on May 11, 2023, along with the Public Health Emergency (PHE). The resolution was signed by President Joe Biden on April 10, 2023.
Both the National Emergency and the PHE began in 2020 due to COVID-19, each of which, provided different flexibilities. Below is additional information regarding each and the impact that ending these declarations will have on employers.
The National Emergency
Ending the National Emergency early will terminate COBRA flexibilities and the tolling of COBRA deadlines will come to an end. The National Emergency has had an impact on COBRA requirements in which group health plans subject to ERISA were required to disregard “the Outbreak Period” (defined as the period beginning March 1, 2020, and ending 60 days after the end of the COVID-19 National Emergency, or such other end date is announced) in determining the following periods and dates:
- The 60-day election period for COBRA continuation coverage;
- The date for making COBRA premium payments;
- The deadline for employers to provide individuals with notice of their COBRA continuation rights;
- The 30-day (or in some cases 60-day) HIPAA special election period to request enrollment in a group health plan;
- The timeframes for filing claims under the plans claim-processing procedures; and
- The deadlines for requesting internal and external appeals for adverse benefit determinations.
In addition, the National Emergency also contained provisions that allowed for extended time for special enrollment in health plans due to life events such as losing coverage, marriage or childbirth. Typically, employees have 30 days to enroll in a plan after such an event, but the National Emergency gave individuals up to one year to enroll.
The Public Health Emergency (PHE)
The PHE is still currently scheduled to end on May 11, 2023. The end of the PHE impacts certain health benefit requirements that have been in place during the emergency period, such as coverage for COVID-19 testing and preventive services. The end of the PHE will have a number of impacts, including but not limited to, the following:
- Employers will no longer be required to cover the cost of COVID testing for employees.
- Employers may potentially see increased enrollment in their group health plan as many individuals who are currently on Medicaid due to provision in the PHE are expected to no longer qualify and will be removed from the program.
- Employers may decide to continue to offer telehealth services to participants in high-deductible health plans (HDHPs) and a qualifying health savings account (HSA) under a safe harbor in the Coronavirus Aid, Relief, and Economic Security Act, prior to meeting the plan’s minimum annual deductible without risking the participant’s HSA eligibility. The option to provide this benefit has been extended for plan years beginning after December 31, 2022, and before January 1, 2025.
Of note, with the end of the PHE, it is unclear whether the federal government will continue to provide funding to cover the full cost of COVID-19 vaccines. Employers who are covered by the Affordable Care Act (ACA) may have coverage obligations, whereas non-ACA covered employers may need to decide if they will cover vaccines with or without cost sharing.
Next Steps for Employers
With the ending of the National Emergency, employers will need to be mindful of the April 10 date as it will have an impact on COBRA tolling deadlines and special enrollment periods, which is 60 days after the National Emergency ends. This means as of June 9, these deadlines revert to their pre-pandemic norms.
With regard to the PHE, employers should start reviewing their health plan terms for COVID-19-related coverage as the end of the PHE means that employers will no longer be required to cover the cost of COVID testing for their employees. However, employers may still choose to cover the cost of testing, and if they choose to do so, will need to decide if they will cover the full cost or if there will be cost sharing. Employers may also need to consider if they will cover COVID-19 related treatments, such as Paxlovid, with or without cost sharing.
Furthermore, employers will need to decide if they will choose to cover the cost of COVID-19 vaccines with or without cost sharing. Employers who are covered by the ACA, generally must cover certain vaccines from in-network providers without charging a copayment or coinsurance. This includes vaccines recommended by the Centers for Disease Control and Prevention (CDC) for children, adolescents and adults.
Importantly, employers may need to review and update their plan documents and ensure that all plan changes are properly communicated to participants in a timely manner.
HR Works will continue to monitor this topic and provide updated information as it becomes available.