On January 31, 2023, the White House issued a press release notifying the public of its intent to issue final extensions and end the COVID-19 Public Health Emergency (PHE) and the National Emergency (NE) (collectively, “the emergency declarations”) on May 11, 2023.

• However, Joint Resolution 7 to end the NE (but not the PHE) passed both the House and Senate and was sent to the President on April 5. The President signed the resolution ending the NE on April 10, 2023.
• A Department of Health and Human Services (HHS) notice in the April 13 Federal Register affirms the end of the PHE on May 11, and provides guidance with respect to the end of certain HIPAA enforcement discretions. (The Federal Register notice can be found here.)

On March 29, 2023, the Department of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) released frequently asked questions (FAQs) Part 58 to address the impact of the anticipated end of emergency declarations, upon certain provisions of the Family First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the Health Insurance Portability and Accountability Act (HIPAA). The FAQs release can be found at FAQs Part 58.

Background

As a response to the COVID-19 pandemic in 2020, the Secretary of Health and Human Services (HHS) declared a PHE on January 31, 2020. In March 2020, the FFCRA (effective April 1, 2020) and the CARES Act were enacted. Section 6001 of the FFCRA generally required group health plans to provide benefits (without cost-sharing) for certain items and services related to diagnostic testing for the detection of the coronavirus during any portion of the PHE. The CARES Act amended section 6001 of the FFCRA to broaden the range of diagnostic items and services that plans had to provide without cost-sharing, pre-authorization, or medical management requirements, which included COVID vaccines. Guidance issued under authority of the PHE required COVID-19 testing kits (including over-the-counter tests) to be covered without cost sharing, prior authorization or other medical management requirements. In addition, HHS did not enforce HIPAA privacy and security rules with respect to telehealth services, COVID-19 testing, and COVID-19 vaccine administration and scheduling during the PHE.

Then-President Trump declared the NE on March 13, 2020, with a March 1, 2020, beginning date. After the NE declaration, the Treasury and the DOL exercised their statutory disaster relief authority to issue, on May 7, 2020, a notice extending the timeframes for various actions with respect to pension and group health plans. The relief extended the deadline until the end of the “Outbreak Period.” The Outbreak Period runs from March 1, 2020, until the 60 days after the end of the NE¹ (now known to be June 9, 2023). Subsequently, the Treasury and DOL clarified that, under the disaster relief authority, the timeframes could not be delayed beyond one year from the date of the original applicable deadline. With respect to group health plans, the relief focused on extending deadlines and granting additional accommodations for participants seeking plan health coverage (including COBRA) and for claim and appeal filing deadlines.

Also in 2020, the IRS issued Notice 2020-15 to provide relief with respect to COVID-19. Under the notice, a health plan will not fail to be an HDHP merely because the plan provides medical care services and items purchased related to testing and treatment of COVID-19 prior to the satisfaction of the minimum deductible. Notice 2020-15 states the relief would continue until further guidance is issued.

Changes Resulting from the End of the PHE  (effective 11:59 pm May 11, 2023)

As a result of the end of the PHE, plans can make the following changes effective May 11, 2023, subject to the notice requirements as mentioned below.

• Plans may impose cost sharing, prior authorization, or other medical management requirements on COVID-19 testing. This includes the ability to limit testing to in-network providers. The FAQs clarified that a test is furnished on the date it is rendered to the patient, and the earliest date is to be used if there are multiple services. For example, if a specimen is collected on May 11, but the laboratory analysis is performed on May 12 or later, the plan should treat the test as being performed during the PHE.
• Plans are no longer required to (but may) cover over-the-counter COVID tests.
• Plans are not required to cover COVID vaccines from out-of-network providers (unless there’s an access issue for the patient).
• Grandfathered plans are not required to cover COVID vaccines.

CHEIRON OBSERVATION: Although plans would no longer be required to cover these services, plan sponsors should consider to what degree maintaining coverage is cost-effective. Additional communication may be needed for plans that have a large benefit differential between in-network and out-of-network, as we have seen an unusually high proportion of out-of-network providers being used for the COVID-19 testing.

Participant Notices

The FAQs remind plans that a material modification to any of the plan or coverage terms that would affect the content of the summary of benefits and coverage (the SBC) requires 60 days advance notice to participants and enrollees (unless it occurs in connection with the renewal of coverage). If benefits had been increased or cost-sharing reduced for the diagnosis or treatment of COVID-19, or for telehealth (or other remote services) and the increases or cost-sharing reduction are revoked upon the expiration of the PHE, previous guidance had stated that the Departments will consider the advance notice requirement to be satisfied if either there had been notice of the general duration of the additional benefits or cost-sharing reduction (such as that they would apply only during the PHE), or there was notice of the change in coverage within a reasonable timeframe in advance of such changes.

Q2 of the FAQs clarifies that a notice provided in a prior plan year will not suffice and advance notice of any changes is required.

CHEIRON OBSERVATION: Many SBCs do not separately identify coverage changes for COVID-19. This would suggest the 60-day notice is not a requirement; however, we recommend plans consult with their plan counsel to ensure they meet proper notice requirements if they are making changes to plan benefits.

Changes Resulting from the End of the NE (effective June 9, 2023)

The disregarded period ends on June 9, 2023. In other words, the deadlines begin on June 10 for each of the following items. (However, the deadline is not more than one year after the extension was first granted.)

• The 30-day (or 60-day period, if applicable) to request special enrollment,
• The 60-day period to elect COBRA continuation coverage,
• The date for making COBRA payments,
• The date for individuals to notify the plan of a qualifying event or determination of disability,
• The date within which claimants may file a benefit claim under the plan’s claim procedure,
• The date within which claimants may file an appeal of an adverse benefit determination under the plan’s appeal 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 the plan providing a COBRA election notice.

Q5 includes the following bold type guidance: “However, nothing in the Code or ERISA prevents a group health plan from allowing for longer timeframes for employees, participants, or beneficiaries to complete these actions, and group health plans are encouraged to do so.”

The FAQs provide examples assuming the end date of the NE is May 11, 2023. However, since the end of the NE is now known to be April 10, 2023, we highlight two examples but adjust the dates to be the actual end of the NHE.

Q5, Example 2, states that an individual who lost coverage on April 11, 2023 (after the end of the NE, but within the 60-day period after April 10, 2023) has until August 8, 2023, to elect COBRA because that date is 60-days from June 9, 2023 (as the period up to June 9, 2023, is disregarded).

Example 4 assumes that an individual elects COBRA coverage on October 15, 2022, retroactive to October 1, 2022. Under those facts, the individual has until July 24, 2023 (45 days after June 9, 2023, which is also 105 days after the end of the NE) to make the premium payments for the months of October 2022 through June 2023.

Cheiron examples: A participant under their plan has 12 months to file a claim. They have a claim with a date of service on December 31, 2022. They would have until June 9, 2024, to file that claim which is 12 months after the end of the NE plus 60 days. A participant under the same plan who has a claim with a date of service on December 31, 2021, would have only until December 31, 2023, to file the claim because the extension cannot be more than one year after the normal filing deadline.

The above extension applies to all group health plans including the medical reimbursement component of Section 125 Flexible Spending Accounts.

Other issues addressed in FAQs Part 58

A)   Special Enrollment After Loss of Medicaid or CHIP Coverage

An individual or dependent who was covered by Medicaid or Children’s Health Insurance Program (CHIP) and loses that coverage may be eligible to elect coverage under a group health plan during a special enrollment period of 60 days. Q6 and Q7 reiterate guidance on the special enrollment period and make it clear that it is a minimum period and that plans can allow a period longer than 60 days.

B)   Health Savings Accounts and High Deductible Health Plans

Under the IRS rules for Health Savings Accounts (HSAs) and associated HDHPs, medical benefits generally may not be provided until a minimum deductible has been met. An exception is provided for preventive care. In 2020, the IRS issued Notice 2020-15 allowing medical care services and items purchased related to testing and treatment of COVID-19 prior to the satisfaction of the minimum deductible. Q8 of the FAQs states this continues to be permissible until further guidance is issued and that any future modifications to the guidance in Notice 2020-15 will not require HDHPs to make changes in the middle of a plan year.

Other issues addressed in April 13 Federal Register notice on end of PHE

• Telehealth (i.e., emails, web portals chats, video calls, and/or telephone calls) will be subject to penalties unless they show a good faith effort to comply with HIPAA rules beginning August 10.
• Community-Based Testing Sites performing testing in public places will be subject to penalties unless they show a good faith effort to comply with HIPAA rules beginning May 12.
• Online and web-based scheduling for COVID-19 vaccine appointments will be subject to penalties unless they show a good faith effort to comply with HIPAA rules beginning May 12.

CHEIRON OBSERVATION: Many major providers have already moved to HIPAA compliant protocols. However, some providers, especially smaller practices, will be impacted by the new requirement for HIPAA compliance.

Cheiron is an actuarial consulting firm that provides actuarial and consulting advice. However, we are not attorneys, accountants, or clinicians. Accordingly, we do not provide legal services, tax advice, or medical advice.

¹See the Cheiron Health Alert of May 7, 2020, for more detail about the extension that was issued.