The end of an era looms for employee benefits plans, as the Biden administration has announced the end of both the Public Health Emergency and the National Emergency periods on May 11, 2023. The two emergency periods were declared in the early stages of the COVID-19 global pandemic, with the Secretary of Health and Human Services declaring a Public Health Emergency effective January 31, 2020, and the President declaring a National Emergency effective March 1, 2020. The relevant government agencies provided different guidance, extensions, and mandates for employee benefit plans during each emergency period. This legal alert covers many of the key employee benefits items that will change upon the end of the emergency periods.

What will change once the Public Health Emergency (PHE) period ends?

When the PHE ends, group health plans will no longer be required to cover COVID-19 testing and testing-related services without cost-sharing, including over-the-counter tests. In addition, group health plans will no longer be required to cover COVID-19 vaccines provided by an out-of-network provider at no cost. Plans will need to determine how and when testing and vaccine benefits may change following the end of the PHE. For example, will the Plan continue to cover all or some portion of testing costs, or impose any restrictions on such coverage? If a plan will make any changes once the PHE ends that amount to a material reduction in health benefits, the plan administrator should send a Summary of Material Modifications (SMM)/or a revised Summary Plan Description (SPD) within 60 days of making the change. Advance notice of changes may be required in certain circumstances.

ESsentials: Nongrandfathered plans must continue to cover COVID-19 vaccines obtained from in-network providers at no cost, as these were added as Affordable Care Act preventive services by the CARES Act.

ESsentials: The recent Braidwood Management Inc. v. Becerra decision out of the Northern District of Texas did not impact the requirement that nongrandfathered plans cover COVID-19 vaccines at no cost, because the Braidwood decision only applies to benefits recommended by the United States Preventive Services Task Force on or after March 23, 2010, and not preventive services recommended by the Advisory Committee on Immunization Practices (including COVID-19 vaccinations).

ESsentials: The DOL clarified in its recent FAQs that high deductible health plans (HDHPs) can continue to provide COVID-19 testing and treatment before meeting the Plan’s annual deductible without risking participant HSA eligibility once the PHE ends, at least until the IRS issues further guidance. The IRS issued special relief under Notice 2020-15 allowing group health plans to cover testing and treatment of COVID-19 prior to satisfying the minimum deductible, without jeopardizing the Plan’s HDHP status. While this relief was clearly intended to apply during the PHE, Notice 2020-15 provided that this relief would remain in effect “until further guidance is issued.”

During the PHE, employers could offer limited, stand-alone telehealth benefits to employees who were not eligible for the employer’s major medical coverage (such as part-time or temporary employees) without violating the Affordable Care Act’s requirement that all group health plans cover preventive services first dollar. To the extent these benefits were offered, employers should discontinue them by the last day of the plan year that includes May 11, 2023 Advance notice of changes may be required in certain circumstances.

Currently, HDHPs can offer telehealth benefits to participants prior to meeting the Plan’s minimum annual deductible without risking the participant’s HSA eligibility. The Consolidated Appropriations Act, 2023 has extended this temporary telehealth relief for plan years beginning after December 31, 2022 and before January 1, 2025. If a plan is currently offering telehealth with HDHPs on a pre-deductible basis, it may continue to do so until the end of 2024 plan year.

What will change once the National Emergency (NE) period ends?

The NE declaration tolled many of the deadlines otherwise applicable to employee benefit plans, including those related to COBRA elections and premium payments, filing claims and appeals under all employee benefit plans, and HIPAA special enrollment. These include deadlines for:

• Filing a benefit claim
• Filing an internal or external appeal of a denied benefit claim
• Furnishing COBRA election notices
• Electing COBRA coverage following a qualifying event
• Making COBRA premium payments
• Notifying the plan of a COBRA qualifying event
• 30-day (60 in some cases) HIPAA special enrollment period

Deadlines are tolled until the earlier of (1) one year from the date the deadline would have begun running for that individual, or (2) 60 days from the end of the NE (July 10, 2023). The tolling period is determined on an individual basis, but in any event the tolling period does not have to last later than July 10, 2023. Recent DOL FAQs provided examples of how the end of the tolling period applies in specific scenarios.

Plan administrators should consider the following actions:

• Notify participants regarding the end of their tolling period (potentially customized based on individual extension periods). For example, plan administrators should notify individuals of their upcoming COBRA election and payment deadlines, and explain that they will lose their right to COBRA coverage if they do not meet those deadlines.
• Reissue or amend prior disclosures if they failed to provide accurate information regarding the deadlines at the end of the NE.
• Revise election notices to remove language regarding tolled deadlines.
• Consider making enrollees aware of other coverage options, such as the special enrollment period under the Health Insurance Marketplace.

In addition, Section 139 of the Internal Revenue Code allows tax-free payments by employers to employees for personal expenses incurred as a result of the NE under certain circumstances. Effective May 11, 2023, this provision will no longer be available.

ESsentials: We note that although Congress passed, and President Biden signed, a resolution ending the national emergency for COVID-19 on April 10, 2023 for certain purposes, this resolution does not apply for purposes of the NE discussed above.

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As the emergency periods are lifted, plan sponsors and other plan administrators should give careful consideration to what benefits may change following the end of the PHE and NE, and take proactive steps to communicate changes and upcoming deadlines to participants.

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