In response to the COVID-19 pandemic, two separate emergency declarations have been in effect: (1) the PHE; and (2) the NE. For more information regarding the Emergency Declarations, COVID Relief, and previous deadline extensions, see our prior Legal Updates here, here, and here.

Prior to January 30, 2023, the PHE and NE were set to expire on April 11, 2023 and March 1, 2023, respectively. On January 30, 2023, the Biden Administration announced in a statement of administrative policy that, in light with the Administration’s previous commitment to give at least 60 days’ notice prior to the termination of the PHE, the Administration is extending both the PHE and NE to May 11, 2023, and will not be extended further after this date. The end of the emergency declarations will affect employer sponsors of group health plans in several ways, discussed below.

The COVID-19 Public Health Emergency

There are several requirements and forms of relief that were implemented during the PHE that apply to employer sponsored group health plans which will have to be addressed:

• COVID-19 Testing: in-network and out-of-network COVID-19 testing are at no cost to participants until May 11, 2023. Plans will not be required to cover COVID-19 testing with no cost-sharing after May 11, 2023.
• COVID-19 Vaccines: in-network COVID-19 vaccines have been required by the CARES Act at no cost during the PHE. Although the CARES Act requirement ends when the PHE ends, the United States Preventive Services Task Force has recommended COVID-19 Vaccines, meaning that plans must continue to cover COVID-19 Vaccines at no cost as preventive care under the Affordable Care Act (ACA).
• Expanded Telehealth Coverage: telehealth coverage will be permitted to be offered to employees whether or not the employee is enrolled in the employer’s medical plan until the end of the plan year that begins on or before May 11, 2023. So, December 31, 2023 for calendar year plans.
• SBC Advanced Notice Requirements: the SBC advanced notice requirements for mid-year changes will no longer be relaxed for plans implementing COVID-19 coverages/benefits after May 11, 2023.

Considering the changes in COVID-related relief once the PHE ends, plans should consider if any plan amendments will need to be enacted to reflect post-PHE period approaches and whether a summary of material modifications (SMM) or other participant communication will be required.

The COVID-19 National Emergency

Under guidance issued in 2020, various timeframes under ERISA and the Internal Revenue Code, including deadlines for filing claims for benefits, electing and paying for COBRA continuation coverage, and requesting special enrollments, were tolled or suspended until the earlier of: (a) one year from the date the individual or plan was first eligible for relief; or (b) 60 days after the announced end of the NE (“Outbreak Period”). With the announced end of the NE, the timeframes for calculating the following deadlines will begin to run again 60 days after May 11, 2023 (i.e. as of July 10, 2023):

• COBRA deadlines
• HIPAA special enrollment deadlines
• ERISA claims, appeals and external review deadlines
• Plan-related notices

Keep in mind, the deadlines applicable to the Outbreak Period are determined on an individual by individual basis and cannot last more than one year from the date the individual or plan was first eligible for relief.

For example, if a participant incurs a claim on January 1, 2023 and has one year to file the claim, the one year deadline would be suspended until the earlier of: (a) one year from the date the individual was first eligible for relief (i.e. January 1, 2024); or (b) 60 days after the announced end of the NE (i.e. July 10, 2023). Thus, the one year period to file a claim would begin to run on July 10, 2023.

Prior to the end of the PHE and NE, plans should consider sending notices to participants communicating to them the end of these emergency declarations and the effect on certain deadlines. Additionally, COBRA election notices should be reviewed to remove any language in which the tolling periods from the Outbreak Period were included.