FAQs Address End of the COVID-19 Emergencies

On March 29, 2022, the DOL, HHS and IRS (the departments) released eight FAQs that address various aspects of the end of the COVID-19 Public Health Emergency (PHE) and National Emergency, as implemented under the FFCRA, CARES Act and HIPAA.

On January 30, 2023, the Biden Administration announced their intention to extend the COVID-19 National Emergency and PHE Declarations to May 11, 2023, and then end both emergencies on that date. The FAQs are based on the timeframes proposed in this announcement.

Alert: however, a subsequent Congressional Resolution, which was signed by President Biden on April 10, 2023, has resulted in the National Emergency (but not the PHE) ending earlier than anticipated. Absent further guidance, this means that the tolling of certain deadlines during the “Outbreak Period,” which extends 60 days after the announced end of the National Emergency, will also end earlier (i.e., on June 9, 2023). The affected deadlines include those for COBRA elections, payments and certain notices, HIPAA special enrollments, and claim and appeal filings. As a result, employers may need to determine (in consultation with their legal counsel, carriers and TPAs) whether to recognize the earlier end of the National Emergency or proceed with the later May 11, 2023, date, which may already have been communicated to plan participants.

COVID-19 Diagnostic Testing
FAQ #1 explains that for the duration of the PHE, the FFCRA requires plans and insurers to cover COVID-19 diagnostic tests and certain related items and services without cost-sharing, prior authorization, or medical management requirements. However, the FFCRA does not require coverage of COVID-19 diagnostic tests, including over-the-counter (OTC) tests, nor prohibit cost-sharing for such tests, once the PHE ends (although the departments encourage plans and insurers to continue to provide coverage without cost-sharing).

The FAQ also clarifies that generally, an item or service is furnished on the date the item or service was rendered to the individual (or for an OTC COVID-19 diagnostic test, the date the test was purchased) and not the date the claim is submitted. Additionally, plans and insurers should look to the earliest date on which an item or service is furnished within an episode of care to determine the date that a COVID-19 diagnostic test is rendered when the test involves multiple items and services (e.g., the date of the specimen collection and not the subsequent laboratory analysis).

Participant Notification of Coverage Changes
FAQ #2 addresses notification to participants of changes to coverage of COVID-19 diagnosis and treatment, including testing (such as the date the plan will cease to cover COVID-19 diagnostic tests or will begin to impose cost-sharing). The departments encourage plans and insurers to continue covering benefits for COVID-19 diagnosis and treatment and for telehealth services after the end of the PHE.

Importantly, the FAQ reinforces that if a plan or insurer makes a mid-year material change to the plan or coverage terms that affect the summary of benefits and coverage (SBC) content, a notice of the change must be provided to participants at least 60 days in advance of the effective date. Prior guidance provided that an SBC would not be required to reverse a COVID-19 benefit enhancement if participants were previously notified that the increased coverage only applied during the PHE. However, the FAQ clarifies that notice provided for a prior plan year will not satisfy the SBC advance notice obligation for a coverage change in the current plan year.

COVID-19 Diagnostic Test Reimbursement
FAQ #3 confirms that for COVID-19 diagnostic tests furnished after the PHE ends, plans and insurers will no longer be required to reimburse a provider the cash price listed on the provider’s website (if a negotiated rate was not in effect before the PHE).

Rapid Coverage of COVID-19 Preventive Services and Vaccines
FAQ #4 explains that after the PHE ends, plans and insurers generally must continue to cover, without cost-sharing, qualifying COVID-19 preventive services, including COVID-19 vaccines and administration, within 15 days of a recommendation for the specific vaccine by a qualifying agency (e.g., ACIP).

However, after the PHE ends, plans and insurers with provider networks are not required to provide coverage for COVID-19 preventive services from out-of-network (OON) providers, nor are they prohibited from imposing cost-sharing for such services delivered by OON providers.

Extension of Certain Timeframes During the Outbreak Period
FAQ #5 reviews the tolling of applicable deadlines for COBRA elections, payments and notices, HIPAA special enrollments, and ERISA claim filings, appeals and external review requests. The FAQ also provides practical examples of the application of the end of the 60-day Outbreak Period (based upon the previously announced May 11, 2023, COVID-19 National Emergency end date).

Given the earlier-than-expected National Emergency end date, the Outbreak Period will end on June 9, 2023, absent further guidance. However, employers may decide (in consultation with their legal counsel, carriers and TPAs) to proceed based on the originally anticipated May 11, 2023, National Emergency end date, and thus voluntarily extend the Outbreak Period to July 10, 2023, for their participants. Before adopting any extended deadline, employers should obtain express approval from their carriers (including stop loss) and ensure that communications to participants accurately reflect the agreed-upon approach. These communications should clearly state that any extension only applies to deadlines impacted by the Outbreak Period relief. Accordingly, employers should review their potential options and related communications with their legal counsel, carriers, TPAs and COBRA vendors as soon as possible.

Special Enrollment After Loss of Medicaid or CHIP
FAQ #6 reminds us that employees and their dependents may be eligible for special enrollment in a group health plan if their Medicaid or CHIP coverage is terminated because of a loss of eligibility. Due to the end of COVID-19 continuous enrollment policies, more individuals will be losing eligibility for Medicaid and CHIP coverage, so employers should anticipate a possible increase in special enrollment requests. The normal 60-day timeframe to request a special enrollment remains extended through the end of the Outbreak Period, and the FAQ encourages employers to allow for a longer special enrollment period. The FAQ notes that employees and dependents losing Medicaid or CHIP coverage are also eligible for special enrollment in individual health coverage (on or off the Marketplace).

FAQ #7 emphasizes that employers can also assist employees losing Medicaid or CHIP eligibility by ensuring their benefits staff are aware of the resumption of Medicaid and CHIP eligibility determinations and encouraging employees enrolled in Medicaid or CHIP coverage to update their address with the state agencies and respond promptly to state communications regarding their coverage.

Impact of Pre-Deductible COVID-19 Testing and Treatment on HSA Eligibility
Finally, FAQ #8 confirms that an individual covered by an HDHP that provides for COVID-19 testing and treatment prior to satisfying the HDHP statutory minimum deductible may continue to contribute to an HSA, as permitted under IRS Notice 2020-15 until further guidance is issued. The FAQ explains that the IRS intends to issue such guidance soon; however, generally, plans will not be required to conform to the new guidance in the middle of a plan year.

Employers may find the new FAQs helpful in administering their group health plans as the COVID-19 PHE and National Emergency periods end. As per usual, employers should work closely with their legal counsel, carriers and TPAs to ensure their plan procedures, documents and communications are updated to reflect related changes. Additionally, employers should monitor for further updates and guidance.

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