On January 30, 2023, the Biden Administration announced its plan to end both the COVID-19 National Emergency and Public Health Emergency that were first declared in March 2020 (collectively, the "Emergency"). The end of the Emergency, effective on May 11, 2023, means that the various changes to deadlines and enrollment periods that were put in place to accommodate employers and employees affected by COVID-19 will cease, and affected ERISA plans can return to their pre-Emergency operation 60 days after the end of the Emergency, which will be July 10, 2023.
During the period specified by the Emergency declarations, also known as the "outbreak period," the following deadlines were suspended, but will all be reinstated as of July 10, 2023:
- COBRA:
- The date by which plan administrators provide a COBRA election notice;
- The 60-day election period for COBRA continuation coverage;
- The date for making COBRA premium payments; and
- The date for notice to a plan of a COBRA qualifying event (or subsequent event) by an individual.
- HIPAA:
- The 30-day or 60-day (as applicable) period to request HIPAA special enrollment.
- Claims:
- The date by which participants must file a benefits claim under the plan’s procedures; and
- The deadlines for participants to request internal and external appeals for adverse determinations on their claims, as well as the deadline to perfect an incomplete external review request.
During the "outbreak period," affected plans were barred from mandating cost sharing, prior authorization, or other medical management tools, which will now be available as of July 10, 2023:
- COVID Tests:
- Plan sponsors can now provide for cost-sharing of COVID-19 diagnostic testing and related services, as well as other medical management tools such as required pre-authorization.
- COVID Vaccines:
- Plans can now provide for cost-sharing of COVID-19 vaccinations and booster doses, as well as other medical management tools such as required pre-authorization. Note that group health plans, not grandfathered under ACA rules, must continue to provide no-cost, in-network vaccinations as a preventative service.
Employers will want to begin now to prepare for the end of the Emergency’s outbreak period on July 10, 2023. They will want to review plan documents, procedures, policies, COBRA notices, and other regularly issued employee communications to determine if they need to be revised to reflect pre-Emergency deadlines and timeframes and to reflect any cost-sharing or other medical management tools that will now apply to COVID-19 tests and vaccinations.
In addition, employers may want to prepare a special employee communication that explains the impact of the end of the Emergency on their plans, including the end of the suspended deadlines, as well as the end of free COVID-19 tests and vaccinations, if applicable. Employers also may have such communications include a reminder of the applicable normal pre-Emergency timeframes.
Plan sponsors may want to confer with their internal administrative team and external service providers to discuss how the transition to the regular timeframes and deadlines can be managed so that the administrators are not overwhelmed by questions and requests for extensions or special HIPAA enrollments in the immediate weeks or months after the end of the outbreak period.
If you have any questions about the end of the COVID-19 National Emergency and Public Health Emergency, would like assistance in amending your group health plan, would like assistance with employee communications regarding this matter, or would like Calfee to review your group health plan or other welfare plan documents with respect to compliance, design or administration, please contact any member of our Employee Benefits and Executive Compensation practice group.
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