On March 29, 2023, the Departments of Labor (“DOL”), Health and Human Services (“HHS”), and Treasury (the “Departments”) published FAQs Part 58 on the Families First Coronavirus Response Act (“FFCRA”), the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), and the Health Insurance Portability and Accountability Act (“HIPAA”), providing guidance on the impact on employee benefit plans of the end of the COVID-19 emergency.

Background

HHS declared a nationwide public health emergency (“PHE”) beginning on January 31, 2020. The Trump Administration also declared a national emergency (the “COVID-19 National Emergency”) on March 13, 2020. These emergency declarations were continued over the past three years until recently, when the Biden Administration and HHS announced that the PHE and the COVID-19 National Emergency are anticipated to end on May 11, 2023. The end of the national emergency was further accelerated when President Biden signed H.J. Res. 7 into law on April 10, 2023, ending the national emergency on that date.

The FAQs address the impact of the end of the national emergency on coverage of COVID-19 diagnostic testing; coverage of preventive services and vaccines for coronavirus; the extension of certain deadlines under ERISA; special enrollment periods due to loss of Medicaid or CHIP coverage; and benefits for COVID-19 testing and treatment under health savings accounts (“HSAs”) and high deductible health plans (“HDHPs”).

COVID-19 Diagnostic Testing

During the PHE, group health plans have been required to cover COVID-19 diagnostic tests without imposing any cost-sharing (deductibles or co-payments), prior authorization, or other medical management techniques. After the end of the PHE, these restrictions are no longer effective, and a group health plan is permitted to make COVID-19 diagnostic tests subject to the plan’s deductibles, co-payments, and coinsurance, and may impose medical management requirements. In the FAQs, the Departments encourage group health plans to continue covering COVID-19 diagnostic tests without cost-sharing or medical management requirements after the end of the PHE.

If employees will be required to pay for COVID-19 diagnostic tests, in whole or in part, such payment is a medical expense and may be reimbursable by a health flexible savings account, a health reimbursement arrangement, or an HSA.

Plans are encouraged to notify participants of changes in coverage related to COVID-19 diagnostic testing, such as a decision to cease covering the tests or to begin imposing cost-sharing. If coverage changes related to COVID-19 testing materially modify any information in the plan’s Summary of Benefits and Coverage (“SBC”), the plan must generally notify participants of the modification 60 days prior to the effective date.

Notwithstanding the general 60-day advance notice rule, and consistent with previous guidance in FAQs Part 43, the Departments will consider a plan to have satisfied its notice obligation if the plan:

• Previously notified participants of the general duration of the additional benefits coverage or reduced cost-sharing (such as that the increased coverage applies only during the PHE); or
• Notifies participants of the general duration of the additional benefits coverage or reduced cost-sharing within a reasonable timeframe in advance of the reversal of the changes.

However, a notice provided concerning a prior plan year will not be considered to satisfy the obligation to provide advance notice for coverage in the current plan year. This statement seems inconsistent with the previous guidance in FAQs Part 43 and seemingly would not allow a plan that had given notice in 2020 that the “no cost-sharing” coverage of COVID-19 testing would cease at the end of the PHE to rely on that 2020 notice as satisfying the advance notice requirement. In other words, to qualify for the exception to the 60-day notice requirement, it appears that group health plans would have had to have notified participants that the “no cost shaving” coverage for COVID-19 testing would cease at the end of the PHE for the current plan year.

Coverage of Preventive Services and Vaccines for Coronavirus

Group health plans must continue to cover preventive services, including COVID-19 vaccines recommended by the Advisory Committee on Immunization Practices (“ACIP”), without cost sharing, even after the end of the PHE. However, after the end of the PHE, plans may impose cost-sharing or exclusions for vaccines provided by an out-of-network provider.

Extension of ERISA Timeframes

Under prior guidance[1], the Departments provided that specific time periods and dates for HIPAA special enrollment, COBRA continuation coverage, and internal claims and appeals and external review, must be disregarded in determining the due date for certain elections and actions by plans and participants. This “disregarded period” ends on the earlier of (1) one year from the date the participant or plan was first eligible for relief; or (2) 60 days after the end of the COVID-19 National Emergency (the “Outbreak Period”). Based on these rules, the disregarded period will end on July 10, 2023, the date that is 60 days after May 11, 2023, the previously announced end of the COVID-19 National Emergency. We understand that the Biden Administration has informally indicated that the earlier termination of the COVID-19 National Emergency on April 10, 2023 will not affect the end of the Outbreak Period or the calculation of the time periods described below.

The disregarded periods extended the following periods and dates:

• The 30 (or 60) day period to request 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 determination of disability;
• The date within which individuals may file a benefits claim under the plan’s claims procedure;
• The date within which claimants may file an appeal of an adverse benefit determination under the plan’s claim procedures;
• The date within which claimants may file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination;
• The date within which a claimant may file information to perfect a request for external review upon a finding that the request was not complete; and
• The date for a plan to provide a COBRA election notice.

The FAQs provide the following examples of how the end of the Outbreak Period will affect COBRA elections by a former participant.

Example 1

Facts:  Individual A works for Employer X and participates in Employer X’s group health plan. Individual A experiences a qualifying event and loses coverage on April 1, 2023. Individual A is eligible to elect COBRA coverage under Employer X’s plan and is provided a COBRA election notice on May 1, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion:  The last day of Individual A’s election period is 60 days after July 10, 2023 (the end of the Outbreak Period), which is September 8, 2023.

Example 2

Facts:  Same facts in Example 1, except the qualifying event and loss of coverage, occur on May 12, 2023, and Individual A is provided a COBRA election notice on May 15, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion:  Because the qualifying event occurred on May 12, 2023, after the end of the COVID-19 National Emergency but during the Outbreak Period, the extensions under the emergency relief notices still apply. The last day of Individual A’s COBRA election period is 60 days after July 10, 2023 (the end of the Outbreak Period), September 8, 2023.

Example 3

Facts:  Same facts as Example 1, except the qualifying event and loss of coverage occur on July 12, 2023, and Individual A is provided a COBRA election notice on July 15, 2023.

What is the deadline for Individual A to elect COBRA?

Conclusion:  Because the qualifying event occurred on July 12, 2023, after the end of both the COVID-19 National Emergency and the Outbreak Period, the extensions under the emergency relief notices do not apply. The last day of Individual A’s COBRA election period is 60 days after July 15, 2023, which is September 13, 2023.

A plan should follow the same process in measuring timeframes after the end of the Outbreak Period for the other actions and events listed above.

Special Enrollment After Loss of Eligibility for Medicaid or CHIP

The FAQs remind employers that employees have 60 days after the end of the Outbreak Period to enroll in the employer’s group health plan if they lose eligibility for Medicaid or CHIP coverage. The 60-day special enrollment period may affect more employees than in a typical year, as Medicaid agencies generally have not terminated any Medicaid beneficiary enrolled on or after March 18, 2020, through March 31, 2023. After March 31, 2023, the agencies will resume normal eligibility practices, and the Departments anticipate that many current Medicaid enrollees will lose coverage.

The 60-day special enrollment period is the minimum statutory period; plans may offer a longer period, and the Departments encourage plans to do so.

Benefits for COVID-19 Testing and Treatment and HSAs/HDHPs

The FAQs continue in effect the relief issued in IRS Notice 2020-15, under which an individual is eligible to contribute to an HSA even if the individual’s HDHP covers medical services and items related to testing for and treatment of COVID-19 prior to the satisfaction of the plan’s high deductible. The IRS is reviewing whether this relief should be continued and anticipates issuing additional guidance in the near future. Any future modification will not generally require HDHPs to make changes in the middle of the plan year in order for individuals to remain eligible to contribute to an HSA. It appears from this statement that the relief will remain in effect during the 2023 plan year.

Conclusion

The FAQs provide helpful guidance on how to administer plans given the pending end of the COVID-19 national emergency. In particular:

• This is an excellent opportunity to review whether COBRA election notices have been sent during the last year and, if not, make sure they are mailed by the end of the Outbreak Period.
• Employers should notify participants of any coverage changes related to COVID-19 and of the end of the extended deadlines for exercising special enrollment rights, making COBRA elections and COBRA premium payments, and taking certain actions under the plan’s claim procedures.

[1] Joint Notification of Extensions of Certain Timeframes for Employee Benefit Plans, Participants and Beneficiaries Affected by the COVID-19 Outbreak issued by the DOL, Department of Treasury and the IRS, published in the Federal Register on March 18, 2020; EBSA Disaster Relief Notice 2021-01; and IRS Notice 2021-58.

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