COVID-19 National Emergency may end earlier than previously announced 

As plan sponsors are in the midst of preparing for the COVID-19 national emergency (NE) and public health emergency (PHE) to end on May 11, 2023 - as previously announced by the Biden Administration - President Biden now appears likely to sign legislation that will terminate the NE sooner. It’s not yet clear when the president will sign the measure, which will start the clock for purposes of unwinding the NE-associated health plan participant relief. Importantly, the legislation does not affect the scheduled end of the PHE.  

Relief measures tied to the national emergency

During the NE, group health plans have been required to extend certain participant deadlines that would have expired during the “Outbreak Period,” which began March 1, 2020, and will end 60 days after the end of the NE. These deadlines related to:

• Special enrollment rights under HIPAA
• COBRA elections, payments and notifications
• Benefit claims, appeals and external reviews

Employers will have less time to prepare for the end of the Outbreak Period relief if, as the pending legislation would require, the NE ends before May 11, 2023. Other COVID-19 relief measures, described in this post, are tied to the PHE and are not impacted by the pending legislation.

Agency guidance on end of the emergency relief

This week, regulators provided FAQs and a blog to assist employers preparing for the NE and PHE to end. The FAQs provide many helpful examples illustrating how the extended deadlines available during the Outbreak Period will wind down. However, the FAQs assume that the NE will end on May 11 and the Outbreak Period 60 days later, on July 10. Assuming President Biden signs the legislation ending the NE earlier than May 11, the dates in the FAQs will need to be adjusted.

The FAQs also describe in detail what coverage of COVID-19 vaccines and preventive services, tests and treatment is required (or encouraged) after the PHE expires. Also of interest are these two items:

• Health savings account (HSA)-qualifying high-deductible health plans (HDHPs) may continue to offer pre-deductible coverage of COVID-19 testing and treatment after the PHE, “until further guidance is issued”.
• While 60 days advance notice is required for midyear changes that materially modify the summary of benefits and coverage (SBC), the FAQs provide some flexibility for plans that improved benefits or reduced cost sharing for the diagnosis or treatment of COVID-19, or for telehealth or other remote care services.

Assisting employees who lose eligibility for Medicaid or CHIP coverage

In addition, the agencies suggest several ways employers can help employees and their dependents who lose Medicaid or Children’s Health Insurance Program (CHIP) coverage as states resume Medicaid redeterminations, including:

• The Department of Labor (DOL) encourages employers to make sure that employees who may be impacted are aware of their special enrollment rights. The agencies note that while the employee typically must request coverage within 60 days of termination of Medicaid or CHIP coverage, individuals losing such coverage from March 31, 2023 (the end of the Medicaid continuous enrollment condition) until the end of the Outbreak Period will have a 60-day special enrollment period measured from the end of the Outbreak Period.
• The DOL posted a flyer that an employer may share with individuals losing Medicaid or CHIP coverage (although some of the dates on the flyer must be adjusted if the NE ends before May 11, 2023).
• The FAQs encourage employers to allow longer special-enrollment periods. Plan sponsors should be sure to consult with their insurer or stop-loss carrier before adopting such a change.

We’ll continue to monitor the pending legislation and any subsequent COVID-19 wind-down guidance and will blog about new developments.

 A more detailed analysis of the COVID-19 public health and national emergencies and the Outbreak Period is available in Section 4 of Mercer’s GRIST: Top 10 compliance issues for health and leave benefits in 2023.