When will the pandemic for employers’ health plans end? | Newsletters Legal News: Employee Benefits

Although in many respects the COVID-19 pandemic appears to be over, there are still a number of special rules caused by the pandemic that directly or indirectly affect employers’ health plans. In this article we will answer some questions we receive from sponsors of an employer plan about the special rules that are still in force and how to prepare for the end of these special rules.

What is the state of national emergency?

As we wrote earlier in the May 2020 and March 2021 articles, various deadlines related to employers’ plans are extended during the “COVID-19 outbreak period”. The epidemic period began in March 2020, when then-President Trump declared a national state of emergency on COVID-19, and will end 60 days after the end of this national state of emergency, which is still in force. As a reminder, below are some of the main extensions:

  • Extension of the deadline for filing, appealing or requesting an external examination of a claim.
  • Extension of the COBRA election period, the COBRA payment date and the COBRA deadlines for notifying the qualification event or new disability plan.
  • Extension of the 30-day or 60-day window for submitting a special application for enrollment in HIPAA.

These extensions will end at the end of the outbreak period (60 days after the end of the national state of emergency) or after each individual qualifies for specific relief for a period of one year.

Are there any other extraordinary declarations that still affect our plans?

In addition to the National Emergency, the Minister of Health and Human Services (HHS) declared a public health emergency in January 2020 and has acted repeatedly to extend this declaration for 90 days. We remind you that while the public health emergency is in force:

  • The employer’s health plans must cover the cost of diagnostic tests for COVID-19 and related services without cost sharing by participants, or the need for prior authorization or other medical management requirements. From 15 January 2022, this coverage was extended to non-prescription (OTC) tests.
  • Employers may offer stand-alone health benefits that are not covered by the Affordable Care Act and other provisions that would in principle prohibit the provision of telehealth benefits to employees that are also not included in the employer’s basic medical coverage.

Are there other temporary rules that are still in force?

  • The CARES Act allows pre-deductible coverage of telehealth services for people with high deductible health plans (HDHPs), including those related to health savings accounts (HSA), until 2021. As discussed in detail in our April 2022 article. ., Congress acted to renew this special relief by passing the Consolidated Appropriations Act (CAA) of 2022, but this renewal is effective only from March 31, 2022 to December 31, 2022.
  • The CARES law requires employers’ health plans to cover the cost of COVID-19 vaccines while the public health emergency is in place, and this requirement is already permanent as it has become a preventive service under the rules of the Affordable Care Act that require first dollar coverage for preventative care.
  • During the pandemic, the federal government covered many of the costs associated with COVID-19 on behalf of the public, including paying for the vaccines themselves and purchasing and delivering over-the-counter test kits. These public health expenditures are likely to be temporary and may end when the National Emergency and Public Health Emergencies are officially closed or shortly thereafter. This is important for employers ‘health plans because it will shift the financial burden from paying for vaccines and tests that the federal government currently covers to employers’ plans.

When will these special rules end?

As of the date of this article:

  • The national state of emergency will end on February 28, 2023, in the absence of action by the White House to extend or reduce it.
  • The public health emergency will end on 12 October 2022, in the absence of action by the HHS to extend that date.
  • The HDHP / Telehealth Act expires on December 31, 2022, unless Congress takes renewed action to extend it.

HHS stated that it would inform the public at least 60 days before the official end of the public health emergency. We could also expect the White House to announce the end of the national state of emergency in advance. It is also said that the White House and the HHS can coordinate so that both the public health emergency and the national emergency can end at the same time, but this is just speculation at the moment.

Is there anything we need to do to prepare when these temporary provisions expire?

Most employers’ health plans have made formal and informal adjustments to their processes in light of the special provisions outlined above. However, even those employers who are on top of this may want to consider the following actions to prepare for the possible end of relief periods:

  • When the national state of emergency is over, the COBRA deadlines will have to be applied again. The plans must ensure that all COBRA eligible persons who have been granted extended periods in the light of the relief are correctly identified in the recording systems. This is important because, from a fiduciary point of view, you will want to communicate the end date to those affected. In addition, the end date will not be the same for all persons in the extended COBRA election or payment window, so it will be important to keep track of all relevant dates.
  • For those employers who have offered free telehealth to HDHP participants, you have to accept that you will not be able to continue this free telehealth benefit in 2023 and plan accordingly in your preparation for 2023 benefits.
  • For those employers who have offered free telehealth to all employees, whether enrolled in your core medical plan, your planning should include the need to limit any free telehealth to employees enrolled in a non-HDHP core health plan through 2023 if the Public Health Emergency ends this year and in 2024 if it ends next year.
  • Also with regard to planning for 2023, employers may want to consider whether their health plan will continue to cover COVID-19 tests without cost-sharing or reimburse the cost of over-the-counter COVID-19 tests when that coverage no longer required by law.
  • When considering what coverage the plan would offer after the end of the various COVID-19 mitigation periods, this plan should take into account that the agency’s law enforcement imposed fees on many departments during the pandemic. For example, during the pandemic, certain enforcement measures were imposed under the Equal Mental Health and Addiction Act (MHPAEA) if the plan covered items and services for testing COVID-19 without cost sharing. However, following the end of the public health emergency, such coverage may raise parity concerns in an MHPAEA assessment.
As part of Foley’s ongoing commitment to providing legal information to our clients and colleagues, our Employee Benefits and Compensation Group has a monthly newsletter called Employee Benefit Information, which provides you with updates on the latest and pressing issues related to employee benefits and other related topics. Click here or click the button on the left to subscribe.

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