Emergency Periods Related to Covid to end May 31, 2023

On January 30, 2023, the Biden Administration announced its intent to end the Public Health Emergency and the National
Emergency related to the COVID-19 pandemic on May 11, 2023. They are currently set to expire after February 28, 2023 and
on April 11, 2023, respectively.
This announcement came in response to two bills in the House of Representatives proposing to end the national emergencies
at an earlier date.
As previously reported, various employee benefit plan requirements are directly impacted by the Public Health Emergency and
the National Emergency. Employers sponsoring health and welfare programs will need to make some decisions with respect to
their programs.
End of the Public Health Emergency
When the Public Health Emergency (“PHE”) ends on May 11, 2023 various requirements as they relate to group health plan
coverage, along with some helpful relief, will come to end.
• COVID-19 Testing. During the PHE, all group health plans must cover COVID-19 tests and other services
resulting in the order for a test without cost-sharing (both in-network and out-of-network), prior authorization,
or medical management and includes both traditional and non-traditional care settings in which a COVID-19 test
is ordered or administered. This includes coverage for over-the counter (OTC) tests. When the PHE ends, this
requirement no longer applies.
• COVID-19 Vaccines. All non-grandfathered group health plans must cover COVID-19 vaccines (including cost of
administering) and related office visit costs without cost-sharing; this applies, to both in-network and out-of-network
providers. When the PHE ends, non-grandfathered plans must continue to provide the vaccine under the ACA
preventive care mandate in-network; however, cost-sharing may apply out-of-network.
• Expanded Telehealth Relief for Large Employers. Large employers (51 or more employees) with plan years that
begin before the end of the PHE may offer 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. This relief expires for plan years that
begin on or after May 11, 2023 (e.g., a June 1, 2023 plan year).
• Summary of Benefits and Coverage (SBC). Group health plans may notify plan members of changes as soon as
practicable and are not held to the 60-day advance notice requirement for changes affecting the SBC during the plan
year or for the reversal of COVID-19 changes once the PHE ends, provided the plan members are timely made aware
of any increase and/or decrease in plan benefits summarized on the SBC.
• Grandfathered Plans. If a grandfathered plan enhanced benefits related to COVID-19 for the duration of the PHE (e.g.,
added telehealth or reduced or eliminated cost-sharing), the plan will not lose grandfathered status if the changes are
later reversed when the PHE ends.
Employers should review these changes and decide how to manage the expiration in May of these requirements.
Carriers and third-party administrators (“TPAs”) may also issue information for you to review and provide directions
on next steps. In some cases (and to the extent allowed) carriers or TPAs may make changes with the next plan year.
End of the National Emergency
The Outbreak Period started March 1, 2020. It applies on an individual basis to group health plans, disability, and other
employee welfare programs. Government plans (e.g., a health plan of a city or county) are not required to comply.
During this time, a plan must disregard the period of one year from the date an individual is first eligible for relief, or 60 days
after the announced end of the National Emergency, whichever occurs first, when determining the following:
• COBRA. The timeframe for the employer to provide a COBRA election notice; the 60-day election period for a qualified
beneficiary to elect COBRA; the COBRA premium payment deadlines (45 days for initial payment, 30-day grace period
for ongoing payments); the deadline to notify the plan of qualifying events or disability determinations.
• HIPAA Special Enrollment. 30 days (60 days for Medicaid/CHIP events) to request a special enrollment right
due to loss of health coverage, marriage, birth, adoption, or placement for adoption.
• ERISA Claims Deadlines. Timeframes to submit a claim and to appeal an adverse benefit determination.
For non-grandfathered medical plans, timeframes to request external review and perfect an incomplete request.
• This includes claim deadlines for a health FSA or HRA that occur during the Outbreak Period.
With the announced end of the National Emergency on May 11, 2023, the Outbreak Period will end July 10, 2023.
This means original deadlines will begin to run after July 10, 2023.
It should be noted that there is retroactive application with respect to COBRA, special enrollment rights for birth of a child
or adoption, and claims.
This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You should not act or rely
on any information contained herein without seeking the advice of an attorney or tax professional. ©2023 Emerson Reid, LLC. All Rights Reserved. CA Insurance License #0C94240.
Hopefully, additional guidance as it relates to the end of
the Outbreak Period and measuring deadlines is forthcoming.
There are many unanswered questions as it relates to
this relief.
In addition, there is fiduciary relief available during the
Outbreak Period as it relates to certain notice and disclosure
deadlines. Notably, many employers took advantage of good
faith relief that allowed furnishing of certain notices and
disclosure through electronic means, such as email or text,
without having to satisfy more burdensome electronic delivery
requirements. This relief will also expire after July 10, 2023.
Other Relief
There is other relief for qualified high deductible health plans
(“HDHPs”) with a health savings account (“HSA”) that came
about as a result of the COVID-19 pandemic but is not tied
to the PHE or National Emergency. As such, these provisions
should not be affected when these timeframes end.
• IRS Notice 2020-15. Allows a qualified HDHP to
provide coverage for COVID-19 testing or treatment
before the IRS deductible is satisfied without
jeopardizing HSA eligibility. This relief applies until
further guidance is issued. It does not appear that the
end of the PHE will affect this relief, unless the IRS
issues guidance stating otherwise.
• Telehealth Relief. For plan years that begin after
December 31, 2022 and before January 1, 2025, an
HDHP/HSA plan may offer telehealth or other remote
care services before the minimum IRS deductible is
satisfied without jeopardizing HSA eligibility.
Special Enrollment Opportunity
As a result of the end of the PHE, it is expected that many
individuals will lose eligibility for Medicaid and the Children’s
Health Insurance Program (“CHIP”). The loss of Medicaid
or CHIP coverage is a special enrollment opportunity onto
a group health plan sponsored by an employer. Employers
should be prepared to address requests for special
enrollment from otherwise eligible employees who lose
Medicaid or CHIP coverage.
Employer Action
With respect to the end of the PHE, employers should
discuss benefit plan design changes with carriers and
TPAs. Employers should be prepared to address requests
for special enrollment as a result of a loss of eligibility for
Medicaid or CHIP.
Employers should also monitor developments as the
government funding to purchase COVID-19 vaccines is
expected to end. Most group health plans will need to cover
the cost of the vaccine as required preventive care (along
with the administration) in-network and without cost-sharing.
Reports from Pfizer and Moderna indicate the commercial
cost could range between $110-130 per dose.
With respect to the end of the Outbreak Period, employers
should:
• Await additional guidance from the regulators; and
• Consider providing notice to employees that
the extended deadlines will come to an end on
July 10, 2023 and consider COBRA implications.