Implications to Employee Benefits Plans For the End of the COVID-19 National Emergency and Public Health Emergency

by Susan Bahme Blumenfeld and Joseph Salamon

President Trump declared the COVID-19 National Emergency (“NE”) on March 13, 2020, retroactively effective March 1, 2020. Similarly, the U.S. Department Health and Human Services (“HHS”) issued a COVID-19 Public Health Emergency (“PHE”), initially beginning on January 27, 2020. The NE and PHE were subsequently renewed a number of times. On January 30, 2023, the White House issued a Statement of Administration Policy announcing plans to extend the emergency declarations to May 11, 2023, and then end them both on that date. Subsequently, on April 10, 2023, President Biden signed into law a Joint Resolution of Congress to end the National Emergency, effective immediately.

Certain benefit requirements and waivers of policies and deadlines for employee benefit plans implemented under the authority of the NE and PHE will expire upon the end of the NE and PHE, as described below.

Policies Expiring with the Public Health Emergency

The following policies affecting health care plans will expire at the end of the PHE on May 11, 2023:

Mandatory coverage of COVID-19 diagnostic tests without cost sharing, including reimbursement of out-of-network providers for COVID-19 testing and related services.[i]

Mandatory coverage of over-the-counter COVID-19 diagnostic tests, without cost sharing (both in-network and out-of-network).[ii]

Mandatory coverage of COVID-19 preventive services, including immunizations, without cost sharing, by non-grandfathered plans, at both in-network and out-of-network providers.[iii]

NOTE: After expiration of the PHE, non-grandfathered plans may limit coverage to in-network providers but must continue to cover COVID-19 preventive services and vaccines, without cost-sharing, effective 15 business days after the date on which the preventive service recommendation is made.[iv]

Waiver of penalties for offering telehealth or other remote care services to employees and their dependents who are not eligible for other group health plan coverage offered by the employer.[v]

Disregard of benefits for items and services required to be covered without cost sharing due to COVID-19 when performing the “substantially all” and “predominant” tests for financial requirements and quantitative treatment limitations under the Mental Health Parity and Addiction Equity Act (MHPAEA) regulations.[vi]

Waiver of standards for obtaining a reward (including any reasonable alternative standard) under a health-contingent wellness program if participants are facing difficulty in meeting the standard as a result of circumstances related to COVID-19, so long as the waiver is offered to all similarly situated individuals.[vii]

Policies Expiring After the End of the National Emergency

Under the authority of the NE, in determining the deadlines for various ERISA provisions, the “Outbreak Period” is ignored. The Outbreak Period is the period between March 1, 2020, and the earlier of (1) one year from the date the individual is first eligible for the relief from the applicable deadline; or (2) sixty days after the end of the NE.[viii] As stated above, the National Emergency ended on April 10, 2023, pursuant to legislation signed into law by President Biden. Therefore, the applicable deadlines for certain ERISA provisions are extended until the earlier of (1) one year, if the individual became eligible for the relief prior to June 9, 2022; or (2) June 9, 2023, if the individual became eligible on or after June 9, 2022. For example, if a participant had a baby on March 1, 2023, and would like to enroll the child, the participant will have until 30 days after June 9, 2023 (the end of the Outbreak Period), that is, until July 9, 2023, to request special enrollment.

The ERISA deadlines extended by the “Outbreak Period” include the following, among others:

Date for a plan to provide a COBRA election notice.
30- or 60- day period for a participant to request special enrollment.
60-day period for election of COBRA continuation coverage.
Date for making initial and ongoing COBRA premium payments.
Date for individuals to notify the plan of a COBRA qualifying event or determination of disability.
Dates within which individuals may file a benefit claim under the plan’s claims procedure.
Date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure.
Date to request an external review of a final claim denial on appeal.
Date to file information to perfect a request for external review.

In addition, the following relief will expire sixty days after the end of the NE (June 9, 2023).

Suspension of ERISA violations for failure to timely furnish a notice, disclosure, or document, if the plan and responsible fiduciary act in good faith and furnish it as soon as administratively practicable.[ix]

Policies Which Will End When Both Emergencies Are Terminated

The following policies will expire with both the PHE and the NE, including:

Nonenforcement of the 60-day notice requirement for changes to a plan’s Summary of Benefits and Coverage, amending the terms of a plan to add benefits, or reduce or eliminate cost sharing, for the diagnosis and treatment of COVID-19, so long as notice is given “as soon as reasonably practicable.”[x]

NOTE: Recent guidance provides that if a plan made changes to increase benefits or reduce or eliminate cost sharing for the diagnosis or treatment of COVID-19 or for telehealth or other remote care services and revokes these changes upon the expiration of the PHE, the plan will be treated as satisfying its obligation to provide advance notice of the material modification if the plan: (1) previously notified the participants and beneficiaries 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 (2) notifies the participants and beneficiaries 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.[xi]

Employee Assistance Programs not considered to provide “significant benefits in the nature of medical care” solely because they offer diagnostic and testing services related to COVID-19.[xii]

Protection of grandfathered status for grandfathered plans that enhanced benefits related to COVID-19 for the duration of the PHE or NE (e.g., added telehealth or reduced or eliminated cost-sharing), but later reverse the enhanced benefits at the expiration of the PHE or NE.[xiii]

Next Steps for Plans

If you have questions about the steps you need to take regarding the end of the NE and PHE, please call us at 216.656.3600. Our Employee Benefits attorneys are here to assist you.

For example, if the plan was initially amended to provide COVID-19 services and treatments with no participant cost-sharing without an established termination date, the plan might need to be amended now if the Trustees wish to reinstate participant cost-sharing for these treatments and services. The Trustees may also wish to consider whether the plan will continue to cover COVID-19 testing and/or out-of-network vaccines without cost sharing, prior authorization, or other medical management requirements, or continue to cover over-the-counter COVID-19 test kits at the pharmacy. Non-grandfathered group health plans will need to cover COVID-19 vaccines from in-network providers at no cost as a preventive service required under the Affordable Care Act. The Trustees will want to evaluate whether the plan needs to communicate the changes related to the end of the NE and PHE with participants generally or with specific participants. Also, the Trustees may wish to consider whether the plan should extend the deadlines for filing claims, claim appeals or elections for COBRA coverage to minimize the impact on participants.

[i] See Families First Coronavirus Response Act of 2020, Pub. L. No 116-127, § 6001, 134 Stat. 177, 201 (2020) (FFCRA), as amended by the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No 116-136, § 3201, 134 Stat. 281, 366 (2020) (CARES Act).

[ii] DOL FAQ Part 51, Q&A-1 thorough Q&A-6.

[iii] See 85 F.R. at 71142 et seq. (November 6, 2020).

[iv] DOL FAQs Part 58, Q&A-4.

[v] DOL FAQs Part 43, Q&A-14.

[vi] DOL FAQs Part 43, Q&A-16.

[vii] DOL FAQs Part 43, Q&A-17.

[viii] See generally, 85 F.R. at 26351.

[ix] EBSA Disaster Relief Notice 2020-01; EBSA Disaster Relief Notice 2021-01.

[x] DOL FAQ Part 42, Q&A-9.

[xi] DOL FAQ Part 58, Q&A-2.

[xii] DOL FAQ Part 42, Q&A-11.

[xiii] DOL FAQ Part 43, Q&A-15.