What to Expect When No More COVID Is Expected: A Post-Emergency Guide for U.S. Benefit Plans

President Biden has announced that both the COVID-19 Public Health Emergency and the related National Emergency, ongoing since March 2020, will end on May 11, 2023. Pursuant to these emergency declarations, many federal agencies (including the Internal Revenue Service, the Department of Labor, and the Department of Health and Human Services) had previously provided for benefit coverage mandates and suspended benefit plan deadlines.

Plan sponsors should prepare for the upcoming end of the emergency declarations by reviewing their plan procedures, documents, and communications to make sure they comply with these rules.

A. End of Public Health Emergency

 Federal policy changes taking effect on May 12, 2023, include the following:

• Plans will no longer be required to provide benefits for COVID-19 diagnostic tests and certain items and services related to diagnostic testing for Covid-19 without cost sharing, prior authorization or medical management or provide any benefits for over-the-counter COVID-19 tests.
• Plans will no longer be required to cover without cost sharing out-of-network “qualifying coronavirus preventive services,” such as vaccines (although, unless they are grandfathered, they will still have to provide such coverage in-network without cost sharing under Affordable Care Act, or ACA, preventive care requirements).
• Employers may no longer offer, without violating certain ACA market reform rules, stand-alone telehealth and other remote care service arrangements to employees (or their dependents) who are not eligible for other employer group health plan coverage.
• Benefits for diagnosis and testing for COVID-19 under employee assistance plans (EAPs) no longer will be ignored for purposes of determining whether the EAP provides “significant medical care” (not permissible if the EAP is to be considered an “excepted benefit”).
• Plans must resume providing 60-day notice of any material modification (as defined under Section 102 of the Employee Retirement Income Security Act of 1974, or ERISA) in any of the terms of a group plan or group health coverage that would affect the content of the Summary of Benefits and Coverage (SBC).
• Grandfathered group health plans can no longer add benefits, or reduce or eliminate cost-sharing requirements, for the diagnosis and treatment of COVID-19 or for telehealth and other remote care services without risking loss of grandfathered status under the ACA if they later reverse these changes.

B. End of National Emergency/Outbreak Period

In May 2020, the Department of Labor and the Internal Revenue Service announced the extension of certain timeframes related to Health Insurance Portability and Accountability Act of 1996 (HIPAA) special enrollment, Consolidated Omnibus Budget Reconciliation Act (COBRA, or continuation of health insurance) coverage, and benefit claims and appeals, freezing the clock during the Outbreak Period. The timelines were disregarded until the earlier of (i) one year from the date the deadline otherwise would have expired and (ii) 60 days after the end of the National Emergency (which will be July 10, 2023). After the end of the Outbreak Period on July 10, 2023, the “tolling” will end and the original timing requirements for such actions will recommence.

The following timing rules will resume on July 11, 2023:

• HIPAA Special Enrollment: Participants will again be subject to a 30-day (or 60-day, if applicable) window to request special enrollment in a group health plan midyear under HIPAA.
• Certain COBRA deadlines will return to their regular requirements, including:
  • The 60-day window to elect COBRA continuation coverage,
  • The 45-day (for the initial payment) and 30-day (for subsequent payment) period in which to make COBRA premium payments,
  • The 60-day period for individuals to notify the plan of certain qualifying events or a disability determination, and
  • The deadlines for plan sponsors to provide COBRA election notices (generally within 44 days of the qualifying event).
• Claims and appeals deadlines under all plans subject to ERISA (including both retirement and welfare plans) also revert to the prepandemic timing, including:
  • The deadline to file a benefit claim under the plan’s claims procedure,
  • The deadline to file an appeal of an adverse benefit determination under the plan’s claims procedure,
  • The deadline to file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination, and
  • The deadline to file information to perfect a request for external review upon a finding that the request was not complete.

C. Actions Plan Sponsors Should Consider

• Ensure that plans are operated in compliance with pre-COVID written terms that were suspended during the pandemic, and consider whether any plan amendments are needed once the emergency period expires.
• Review and amend operational procedures, summary plan descriptions, and COBRA notices.
• Communicate with affected qualified beneficiaries specifically and with all plan participants more broadly regarding applicable deadlines.

Knowledge Management Lawyer Katie Dean contributed to this Sidley Update.