Key Points

• Plan sponsors should review changes to required coverage of COVID-19 testing and vaccines due to the end of the public health emergency on May 11, 2023.
• Standard deadlines for certain health plan actions apply again due to the end of the national emergency and corresponding “Outbreak Period”, as of July 10, 2023.

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The federally-declared COVID-19 public health emergency (PHE) will end on May 11, 2023. The COVID-19 national emergency (NE) ended on April 10, 2023, despite an earlier announcement that it would end concurrently with the PHE.

• During the PHE, group health plans are required to cover COVID-19 vaccines and testing (including diagnostic and over-the-counter (OTC) tests) without cost-sharing, prior authorization, or other medical management requirements.
• During the NE, deadlines for certain group health plan actions are extended until the end of the “Outbreak Period” (60 days after the end of the NE), or, if earlier, one year. Even though the NE ended earlier than anticipated, the end of the Outbreak Period still appears to be July 10, 2023.

The Departments of Health and Human Services, Labor, and Treasury (the “Departments”) jointly issued a set of Frequently Asked Questions (FAQs) to provide guidance for plan sponsors about the end of the PHE and NE.

End of Public Health Emergency and Associated Coverage Requirements

Plan sponsors should consider whether to continue coverage for certain COVID-19-related items and services after the PHE ends, and if so, on what terms. When the PHE ends, plans will no longer be required to cover diagnostic or OTC COVID-19 tests without cost-sharing or medical management. Plans will still be required to cover recommended COVID-19 vaccines received from in-network providers without cost-sharing, but cost-sharing can apply for COVID-19 vaccines received from out-of-network providers.

Accordingly, plan sponsors should consider whether to:

1. Continue covering COVID-19 tests and related services, and if so, both in- and out-of-network, and with or without cost-sharing or other requirements;
2. Continue covering COVID-19 vaccines received from out-of-network providers with no cost-sharing.

In the FAQs, the Departments “encourage” plans to continue providing COVID-19 diagnostic testing coverage without cost-sharing or other requirements, and to notify participants of any changes in coverage of COVID-19 testing.

End of National Emergency and Associated “Outbreak Period”

During the NE, deadlines for certain ERISA plan-related actions (e.g., HIPAA special enrollments, COBRA elections and premium payments, claims and appeals) were extended until the earlier of one year or 60 days after the end of the NE, i.e. the “Outbreak Period.” Based on the announced date for ending the NE on May 11, the Outbreak Period would end on July 10, 2023. Although no formal guidance has been issued, it appears that the end of the Outbreak Period will remain July 10, 2023, even though the NE ended on April 10.

Employers may want to consider notifying participants that standard deadlines for these plan-related actions will apply again after the end of the Outbreak Period. The FAQs provide examples of the application of standard deadlines following the Outbreak Period and “encourage” plans to allow for longer timeframes for these plan-related actions.

Related Issues to Consider

In reviewing plan changes related to the end of the PHE and NE, plan sponsors may also need to consider the following:

• Plan amendments and SPD updates may be necessary to reflect changes resulting from the end of the PHE and NE.
• Depending on how COVID-19-related plan changes were communicated to participants during the PHE and NE, plan sponsors may need to provide a Summary of Material Modifications (SMM) or a 60-day advance notice of changes to the plan's Summary of Benefits and Coverage (SBC).
• According to the FAQs, until further guidance is issued, individuals covered by a high deductible health plan (“HDHP”) remain HSA-eligible after the end of the PHE/NE, even if the HDHP provides pre-deductible coverage for COVID-19 testing or treatment.

If you have any questions regarding the FAQs or any other issues resulting from the end of PHE and NE, please contact a member of the Hanson Bridgett Employee Benefits Group.