End of COVID Public Health Emergency and National Emergency

The end of the National Emergency means that the extension of certain timeframes under ERISA group health plans will no longer be in effect.

Starting on March 1, 2020, group health plans (both insured and self-funded) subject to ERISA were required to disregard (toll) the following timeframes:

• Special enrollee election
• Time to elect COBRA
• Time to pay initial and subsequent COBRA premiums
• Time to provide notice of a qualifying event
• Time to file a claim
• Time to submit an internal or external claim appeal

until the earlier of the following:

1. 1 year from the date the person was eligible for relief, or
2. 60 days after the announced end of the National Emergency, or another date announce by Federal Regulators, i.e. July 10, 2023

After the National Emergency ends, any deadline that was disregarded and has not already expired (i.e. one year period) will begin to run again on July 10, 2023.

The end of the Public Health Emergency means that plans and insurers are no longer required to cover COVID-19 testing products and related services without cost sharing. 

We anticipate that over-the-counter testing will be generally denied under most plans, unless the plan is updated to provide otherwise, and medically necessary testing administered by a provider may be generally subject to standard cost share under most plans.

Example One

• November 1, 2022: The COBRA election notice is furnished to individual. The 60-day period to elect COBRA is tolled.
• April 10, 2023: The National Emergency ends.
• July 10, 2023: The Outbreak period ends 60 days after July 10th, and the 60-day period to elect COBRA starts.
• RESULT: The COBRA election period expires September 8, 2023 (The 60-day period in which to elect COBRA began on July 10, 2023, and ends 60 days later, on September 8, 2023.)

Example Two

After the NE ends, the timeframes begin to run again 60 days later unless the one-year period has expired. For example:

• Claim was incurred January 1, 2023.
• Participant has 1 year to file claim.
• 1- year deadline is tolled beginning January 1, 2023.
• National Emergency ends April 10, 2023.
• 1-year timeframe begins to run on July 10, 2023.
• RESULT: Claim must be filed by July 9, 2024.

The CARES Act and Interim final Rules require non-grandfathered group health plans and health insurance insurers offering non-grandfathered group or individual health insurance to provide coverage during the public health emergency, without cost sharing, for qualifying coronavirus preventive services, including immunization if it was not provided free of charge by the federal government, and its administration, regardless of whether an in-network or out-of-network provider delivers such services.

Under the ACA, plans generally have a year to cover new immunization recommendations by the USPSTF; but under the CARES Act, coverage of COVID-19 vaccines must be provided within 15 business days after the date on which an applicable recommendation is made by USPSTF or ACIP. When the PHE ends, non-grandfathered self-funded Plans, and group/individual insurance policies must continue to cover in-network COVID-19 vaccines, without cost share. 

Under the CARES Act and Notice 2020-29, a high deductible health plan could temporarily cover telehealth and “other remote care services” pre-deductible, and a member could have coverage for telehealth and other remote care services pre-deductible without impacting the ability to contribute to an HSA. This applied to telehealth and other remote care services provided on or after January 1, 2020, for plan years beginning on or before December 31, 2021.

The CAA, 2022 temporarily renewed this relief, but only for months beginning after March 31, 2022, and before January 1, 2023.

The CAA, 2023 provided continued relief allowing first dollar coverage of telehealth service under high deductible plans for plan years beginning January 1, 2023, but before January 1, 2025. So for non-calendar plan years, there could be a gap in coverage.

Therefore, pre-deductible telehealth is not tied to PHE or NE, but it is time limited.

On March 29, 2023, Federal regulators issued FAQs Part 58 providing guidance about the end of the declared emergencies. Regulators state that if a plan or insurer makes a material modification to any of the plan or coverage terms that would affect the content of the summary of benefits and coverage (SBC), that is not reflected in the most recently provided SBC, and that occurs other than in connection with the renewal or reissuance of coverage, the plan or insurer must provide notice of the modification to participants no later than 60 days prior to the date on which the modification will become effective.

The FAQs explain that if a plan or insurer 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 Public Health Emergency, federal regulators will consider the plan or insurer to have satisfied its obligation to provide advance notice of material modification if the plan or insurer:

1. Previously notified participants that the increased coverage applied only during the PHE; or
2. Notifies the participant 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.

Federal regulators clarified that a notification provided with respect to a prior plan year will not be considered to satisfy the obligation to provide advance notice for coverage in the current plan year.