Compliance Corner Archives
COVID-19 Updates 2023 Archive
The Benefits Compliance team provides several resources that are available for assistance regarding the COVID-19 crisis. Information presented through our resources is subject to change pending additional guidance from the DOL, IRS, or other state or federal regulatory agencies.
- Benefits Compliance COVID-19 State Quick Reference Chart (Previously linked website content is no longer available)
- Biden Administration Provides Update on Duration of COVID-19 National and Public Health
- Compliance Considerations on Insurance Carrier Refunds in the COVID-19 Environment (Previously linked website content is no longer available)
- DOL Issues Clarification on the Extension of Certain Timeframes for Employee Benefits Plans
- IRS Clarifies Extension of Certain COBRA Election and Premium Payments Deadlines
- Federal Government Extends COVID-19 National Emergency
- Congress Passes Federal Spending Bill with Important Employee Benefit Provisions (View the first bullet point in the article for the latest Telehealth Relief Extension updates.)
- The COVID-19 National Emergency Has Ended
- FAQs Address End of the COVID-19 Emergencies
- DOL Indicates the COVID-19 National Emergency’s Outbreak Period Extends to July 10, 2023
- IRS Issues New Notice on COVID-19 Expenses and Preventive Care for HDHP Purposes
To listen to recent and prior Benefits Compliance COVID-19-related podcasts, please visit NFP’s Insights from the Experts podcast page or by clicking here.
To view recent and prior Benefits Compliance COVID-19-related webinars, please visit the NFP.com/Insights/Webinars page or by clicking here.
On July 20, 2023, CMS published a letter to plan sponsors, employers, and insurers concerning the effect of the end of the COVID-19 Public Health Emergency on Medicaid. Medicaid terminations were paused during the emergency, but now many states are terminating enrollments in the program.
CMS acknowledges that enrollment in Medicaid rose during the pandemic, and participants are still in need of coverage, even as they lose eligibility for the program. To ease the transition out of Medicaid, the agency created a special enrollment window from March 31, 2023, to July 31, 2024, for enrollment in the Marketplace for individual coverage. This special enrollment window is available to those who lose Medicaid or Children’s Health Insurance Program (CHIP) coverage and are eligible for Marketplace coverage.
The agency encourages plan sponsors, employers, and insurers to amend their plans to extend the usual period for enrolling in their plans due to a loss of Medicaid or CHIP. This special enrollment right, granted under HIPAA, has a minimum of 60 days. However, CMS asks that plans adopt the special enrollment window period that the agency created for Marketplace enrollment. The special enrollment window period allows individuals who lose Medicaid eligibility due to the end of the Medicaid continuous enrollment policy more time to enroll in their employer’s plan. In addition, CMS asks that plan sponsors and employers take steps to make enrolling in their plans easier for those who lost coverage under Medicaid or CHIP.
Finally, the agency asks plan sponsors and employers to make sure that employees are aware of their right to enroll in the Marketplace. CMS also asks plan sponsors and employers to remind those employees covered by Medicaid or CHIP to make sure that their contact information is current with the state agency administering those programs.
Employers and plan sponsors should be aware of and consider these requests from CMS.
On June 23, 2023, the IRS issued Notice 2023-37 in response to the end of the COVID-19 National Emergency and Public Health Emergency. Notice 2023-37 ends prior relief related to COVID-19 testing and treatment benefits under an HDHP.
As background, HDHP participants are ineligible for HSA contributions if they receive first-dollar coverage for any healthcare that is not a preventive service. However, under specific relief previously announced in IRS Notice 2020-15, an HDHP is allowed to cover COVID-19 testing and treatment without cost-sharing, and it will not impact HSA eligibility. This temporary relief was intended to remove barriers to COVID-19 testing and treatment for HDHP participants.
Under the new Notice 2023-37, the HDHP relief under Notice 2020-15 will only apply to plan years ending on or before December 31, 2024. For subsequent plan years, an HDHP is not permitted to provide benefits associated with COVID-19 testing and treatment prior to the satisfaction of the applicable minimum deductible.
Notice 2023-37 further declares that COVID-19 testing is not considered “preventive care” for purposes of the HDHP preventive care safe harbor. However, the agency confirmed that if COVID-19 testing was to be designated with an “A” or “B” rating by the United States Preventive Services Task Force, then it would be treated as preventive care under HSA eligibility rules and may be covered prior to satisfying the HDHP deductible.
Thankfully, Notice 2023-37 provides a transition period to make necessary plan design changes. Employers sponsoring HDHPs that currently cover COVID-19 testing or treatment without cost-sharing should work with carriers, TPAs, and legal counsel to ensure the necessary changes are made to comply with the end of Notice 2020-15’s HDHP relief, including plan document updates and participant notifications, as required under ERISA’s disclosure rules.
On April 10, 2023, President Biden signed a Congressional Resolution immediately ending the COVID-19 National Emergency. Previously, the Biden administration announced the National Emergency would end on May 11, 2023. The Congressional Resolution did not impact the COVID-19 Public Health Emergency, which is still scheduled to end on May 11, 2023.
The National Emergency is tied to the 'Outbreak Period,' during which certain plan deadlines (e.g., COBRA elections, payments and certain notices, HIPAA special enrollments, and claims and appeals filings) are extended. The Outbreak Period began on March 1, 2020, and was expected to end 60 days after the announced end of the COVID-19 National Emergency, unless otherwise extended to a later date. When the National Emergency ended on April 10, 2023, it was presumed the Outbreak Period would end 60 days later (June 9, 2023). However, since then, the DOL has consistently indicated that they consider the Outbreak Period to extend to July 10, 2023, as reflected in FAQ guidance issued prior to April 10, 2023. In such case, the affected deadlines (e.g., COBRA elections, payments and certain notices, HIPAA special enrollments, and claims and appeals filings) will begin to run their normal lengths on July 11, 2023.
We will continue to monitor for official written confirmation of the July 10, 2023, Outbreak Period end date. However, plan sponsors should be aware of the informal DOL guidance based on the statements of agency officials. Sponsors should consult with legal counsel, particularly those who wish to rely on an Outbreak Period end date based on the accelerated end of the National Emergency (i.e., June 9, 2023).
Note: Since the publication of this article on April 11, 2023, there have been further developments regarding the ending of the COVID-19 National Emergency. Please see the article published in the April 25, 2023, edition of Compliance Corner.
On March 29, 2022, the DOL, HHS and IRS (the departments) released eight FAQs that address various aspects of the end of the COVID-19 Public Health Emergency (PHE) and National Emergency, as implemented under the FFCRA, CARES Act and HIPAA.
As referenced in our prior article, on January 31, 2023, the Biden Administration announced their intention to extend the COVID-19 National Emergency and PHE Declarations to May 11, 2023, and then end both emergencies on that date. The FAQs are based on the timeframes proposed in this announcement.
Alert: However, a subsequent Congressional Resolution, which was signed by President Biden on April 10, 2023, has resulted in the National Emergency (but not the PHE) ending earlier than anticipated. Absent further guidance, this means that the tolling of certain deadlines during the 'Outbreak Period,' which extends 60 days after the announced end of the National Emergency, will also end earlier (i.e., on June 9, 2023). The affected deadlines include those for COBRA elections, payments and certain notices, HIPAA special enrollments, and claim and appeal filings. As a result, employers may need to determine (in consultation with their legal counsel, carriers and TPAs) whether to recognize the earlier end of the National Emergency or proceed with the later May 11, 2023, date, which may already have been communicated to plan participants.
COVID-19 Diagnostic Testing
FAQ #1 explains that for the duration of the PHE, the FFCRA requires plans and insurers to cover COVID-19 diagnostic tests and certain related items and services without cost-sharing, prior authorization, or medical management requirements. However, the FFCRA does not require coverage of COVID-19 diagnostic tests, including over-the-counter (OTC) tests, nor prohibit cost-sharing for such tests, once the PHE ends (although the departments encourage plans and insurers to continue to provide coverage without cost-sharing).
The FAQ also clarifies that generally, an item or service is furnished on the date the item or service was rendered to the individual (or for an OTC COVID-19 diagnostic test, the date the test was purchased) and not the date the claim is submitted. Additionally, plans and insurers should look to the earliest date on which an item or service is furnished within an episode of care to determine the date that a COVID-19 diagnostic test is rendered when the test involves multiple items and services (e.g., the date of the specimen collection and not the subsequent laboratory analysis).
Participant Notification of Coverage Changes
FAQ #2 addresses notification to participants of changes to coverage of COVID-19 diagnosis and treatment, including testing (such as the date the plan will cease to cover COVID-19 diagnostic tests or will begin to impose cost-sharing). The departments encourage plans and insurers to continue covering benefits for COVID-19 diagnosis and treatment and for telehealth services after the end of the PHE.
Importantly, the FAQ reinforces that if a plan or insurer makes a mid-year material change to the plan or coverage terms that affect the summary of benefits and coverage (SBC) content, a notice of the change must be provided to participants at least 60 days in advance of the effective date. Prior guidance provided that an SBC would not be required to reverse a COVID-19 benefit enhancement if participants were previously notified that the increased coverage only applied during the PHE. However, the FAQ clarifies that notice provided for a prior plan year will not satisfy the SBC advance notice obligation for a coverage change in the current plan year.
COVID-19 Diagnostic Test Reimbursement
FAQ #3 confirms that for COVID-19 diagnostic tests furnished after the PHE ends, plans and insurers will no longer be required to reimburse a provider the cash price listed on the provider's website (if a negotiated rate was not in effect before the PHE).
Rapid Coverage of COVID-19 Preventive Services and Vaccines
FAQ #4 explains that after the PHE ends, plans and insurers generally must continue to cover, without cost-sharing, qualifying COVID-19 preventive services, including COVID-19 vaccines and administration, within 15 days of a recommendation for the specific vaccine by a qualifying agency (e.g., ACIP).
However, after the PHE ends, plans and insurers with provider networks are not required to provide coverage for COVID-19 preventive services from out-of-network (OON) providers, nor are they prohibited from imposing cost-sharing for such services delivered by OON providers.
Extension of Certain Timeframes During the Outbreak Period
FAQ #5 reviews the tolling of applicable deadlines for COBRA elections, payments and notices, HIPAA special enrollments, and ERISA claim filings, appeals and external review requests. The FAQ also provides practical examples of the application of the end of the 60-day Outbreak Period (based upon the previously announced May 11, 2023, COVID-19 National Emergency end date).
Given the earlier-than-expected National Emergency end date, the Outbreak Period will end on June 9, 2023, absent further guidance. However, employers may decide (in consultation with their legal counsel, carriers and TPAs) to proceed based on the originally anticipated May 11, 2023, National Emergency end date, and thus voluntarily extend the Outbreak Period to July 10, 2023, for their participants. Before adopting any extended deadline, employers should obtain express approval from their carriers (including stop loss) and ensure that communications to participants accurately reflect the agreed-upon approach. These communications should clearly state that any extension only applies to deadlines impacted by the Outbreak Period relief. Accordingly, employers should review their potential options and related communications with their legal counsel, carriers, TPAs and COBRA vendors as soon as possible.
Special Enrollment After Loss of Medicaid or CHIP
FAQ #6 reminds us that employees and their dependents may be eligible for special enrollment in a group health plan if their Medicaid or CHIP coverage is terminated because of a loss of eligibility. Due to the end of COVID-19 continuous enrollment policies, more individuals will be losing eligibility for Medicaid and CHIP coverage, so employers should anticipate a possible increase in special enrollment requests. The normal 60-day timeframe to request a special enrollment remains extended through the end of the Outbreak Period, and the FAQ encourages employers to allow for a longer special enrollment period. The FAQ notes that employees and dependents losing Medicaid or CHIP coverage are also eligible for special enrollment in individual health coverage (on or off the Marketplace).
FAQ #7 emphasizes that employers can also assist employees losing Medicaid or CHIP eligibility by ensuring their benefits staff are aware of the resumption of Medicaid and CHIP eligibility determinations and encouraging employees enrolled in Medicaid or CHIP coverage to update their address with the state agencies and respond promptly to state communications regarding their coverage.
Impact of Pre-Deductible COVID-19 Testing and Treatment on HSA Eligibility
Finally, FAQ #8 confirms that an individual covered by an HDHP that provides for COVID-19 testing and treatment prior to satisfying the HDHP statutory minimum deductible may continue to contribute to an HSA, as permitted under IRS Notice 2020-15 until further guidance is issued. The FAQ explains that the IRS intends to issue such guidance soon; however, generally, plans will not be required to conform to the new guidance in the middle of a plan year.
Employers may find the new FAQs helpful in administering their group health plans as the COVID-19 PHE and National Emergency periods end. As per usual, employers should work closely with their legal counsel, carriers and TPAs to ensure their plan procedures, documents and communications are updated to reflect related changes. Additionally, employers should monitor for further updates and guidance.
Note: Since the publication of this article on April 11, 2023, there have been further developments regarding the ending of the COVID-19 National Emergency. Please see the article published in the April 25, 2023, edition of Compliance Corner.
On April 10, 2023, President Biden signed a Congressional Resolution immediately ending the COVID-19 National Emergency. This resolution does not impact the COVID-19 Public Health Emergency, which is still scheduled to end on May 11, 2023. With the National Emergency now ending on April 10, 2023, the Outbreak Period will end 60 days later, June 9, 2023. The affected deadlines (e.g., COBRA elections, payments and certain notices, HIPAA special enrollments, and claims and appeals filings) will begin to run their normal lengths on June 10, 2023.
As a result, employers may need to determine (in consultation with their legal counsel, carriers and TPAs) whether to recognize the earlier end of the National Emergency/Outbreak Period (April 10, 2023/June 9, 2023) or proceed with the previously announced May 11, 2023/July 10, 2023, dates, which may already have been communicated to plan participants. Before adopting any extended deadline, employers should obtain express approval from their carriers (including stop loss) and ensure that communications to participants accurately reflect the agreed-upon approach. These communications should clearly state that any extension only applies to deadlines impacted by the Outbreak Period relief. Accordingly, employers should review their potential options and related communications with their legal counsel, carriers, TPAs and COBRA vendors as soon as possible.
On February 9, 2023, the Department of Health and Human Services (HHS) issued a Fact Sheet on the agency's transition out of the end of the COVID-19 Public Health Emergency (PHE), scheduled for May 11, 2023. The Fact Sheet outlines some of the implications of the PHE's expiration. Before addressing the changes, the Fact Sheet lays out what will not be impacted by the end of the PHE, starting with the agency's commitment to ensuring access to COVID-19 vaccines and treatments and the FDA's ability to authorize COVID-19 tests, vaccines and treatments for emergency use. Certain flexibilities related to Medicare and Medicaid telehealth coverage and opioid use disorder treatment, including access to buprenorphine without an in-person physical exam and expanded methadone take-home doses, will also not be impacted by the end of the PHE.
Many of the changes described in the Fact Sheet relate to Medicare and Medicaid coverage, including the end of relaxed requirements for healthcare providers to participate in Medicare or Medicaid programs, a policy intended to expand access to care during the PHE.
There are two changes that will directly impact employer-sponsored group health plan coverage. First, the requirement to cover COVID-19 tests without cost-sharing, both for over-the-counter (OTC) and laboratory tests, will end. However, HHS is encouraging private insurers to continue providing coverage for COVID-19 testing going forward. Second, group health plans may begin to impose network restrictions on COVID-19 vaccine coverage but must continue to cover vaccinations received from in-network providers as a preventative service without cost-sharing.
Other PHE-ending changes outlined in the Fact Sheet include the CDC's reduced ability to track COVID-19 laboratory tests and immunization data due to an expiration of CDC authority to require this data from labs. Similarly, the FDA will no longer have the authority to require manufacturers of certain devices related to the diagnosis and treatment of COVID-19 to notify the FDA of an interruption in manufacturing, leading to a reduced ability to detect early shortages.
Employers sponsoring group health plans should consult with carriers and TPAs regarding any coverage changes. Self-insured plans need to decide whether to impose cost-sharing or medical management criteria on COVID-19 tests (either OTC or through a laboratory) and out-of-network vaccines. The discussion with carriers and TPAs should include any necessary changes to plan documents and participant communications to ensure these materials accurately reflect applicable plan coverage, including limitations and cost-sharing. Plan sponsors that amended their ERISA plan documents to adopt the PHE mandates back in 2020 will need to amend those documents again to reflect any changes to coverage terms, then notify participants of these changes.
Fact Sheet: COVID-19 Public Health Emergency Transition Roadmap »
On January 30, 2023, the Biden Administration announced their present intention to extend the COVID-19 national emergency and public health emergency declarations to May 11, 2023, and then end both emergencies on that date.
The COVID-19 national emergency and public health emergency (PHE) were declared by the Trump Administration in 2020. They are currently set to expire this year on March 1 and April 11, respectively. This wind-down would align with the Administration's previous commitments to give at least 60 days' notice prior to termination of the PHE.
For group health plans, the end of the COVID-19 national emergency would mean the end of the 'outbreak period.' To review, the outbreak period is the period that began March 1, 2020, and that will extend 60 days after the announced end of the COVID-19 national emergency. During this period, certain otherwise applicable ERISA deadlines are extended until the earlier of one year (from when an individual first becomes eligible for relief) or until the end of the outbreak period. The affected deadlines include the following:
- The 60-day election period for COBRA continuation coverage.
- The date for making initial or subsequent COBRA premium payments.
- The 30- or 60-day period to request a HIPAA special enrollment.
- The date for participants to notify the plan of a COBRA qualifying event or new disability.
- The dates by which participants may file a benefits claim under a plan's claims procedures or request internal and external appeals for adverse benefits determinations.
Please see our prior article regarding these extensions.
Accordingly, if the COVID-19 national emergency is declared to end on May 11, 2023, the 60-day timeframe to determine the end of the outbreak period would be calculated from that date. Subsequently, the applicable deadlines would return to their standard lengths.
With respect to the COVID-19 public health emergency, for the duration, group health plans and insurers must pay for COVID-19 tests and related services without cost-sharing, prior authorization or other medical management requirements. This coverage requirement includes over-the-counter (OTC) COVID-19 tests authorized, cleared or approved by the FDA; specifically, health plans must cover up to eight free OTC at-home tests per covered individual per month, and no physician's order or prescription is required. Additionally, non-grandfathered group health plans and insurers must also cover COVID-19 vaccines without cost-sharing, even when provided by out-of-network providers who must be reimbursed a reasonable amount for the vaccine administration.
When the public health emergency ends, under the ACA and CARES Act, most group health plans must continue to provide coverage for COVID-19 vaccines at no cost, but only from in-network providers. At that time, federal laws would no longer prohibit cost-sharing for COVID-19 vaccines, including boosters, from out-of-network providers or for COVID-19 tests and related services.
Plan sponsors should be aware of these most recent developments and consult with their carriers and TPAs regarding administrative and coverage changes in the post-COVID-19 emergency period. The discussion should include any necessary changes to plan documents and participant communications to ensure these materials accurately reflect applicable timeframes, deadlines and plan coverage, including limitations and cost-sharing. Plan sponsors should stay tuned for further updates.