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In January 2023, the Biden administration announced its intent to end the COVID-19 national emergency and the COVID-19 public health emergency effective May 11, 2023, directly impacting the coverage of certain COVID-19 services as well as the timeframes for participants for certain health plan-related deadlines, such as special enrollment, COBRA election, COBRA premium payments, and claims and appeals filings.
However, on Monday, April 10, 2023, President Biden signed Congress’s jointly introduced H.J Res. 7 into law, ending the COVID-19 national emergency immediately instead of on May 11, 2023, as previously announced.
The Department of Labor (DOL) has unofficially signaled that its previous guidance issued on March 29, 2023, stands, including guidance that the Outbreak Period will end on July 10, 2023.
Employer Action Items
- Analyze whether to impose permitted cost-sharing, prior authorization or other medical management requirements for COVID-19 diagnostic tests or provide other relief suggested by the FAQ such as continued extension of applicable deadlines for claims, COBRA, and HIPAA special enrollment.
- Work with plan advisors to implement the changes to ensure that insurance carriers, including stop loss carriers, are on board with any COVID-19 enhancements the plan sponsor chooses to keep in place.
- Review plan documents and employee communications, including summary plan descriptions, to determine whether amendments are required to reflect the changes (note that language providing that the enhanced benefits only apply during the national emergency and public health emergency periods may not need to be amended).
- Immediately communicate changes in group health plan benefits and deadlines for claims, COBRA and HIPAA special enrollment resulting from the end of the national emergency and public health emergency.
- Review and update current COBRA notices to reflect the end of the Outbreak Period and work with your COBRA administrator to communicate with impacted qualified beneficiaries regarding the end of extended deadlines to make coverage elections and pay premiums.
- Understand any state or local paid leave laws related to obtaining the COVID-19 vaccine or recovering from COVID-19. Further, these state or local paid leave laws may cover caring for a family member with COVID-19. Employers should understand how any applicable state or local paid leaves intersect with their employer-sponsored health plan and COBRA coverage.
- Evaluate any COVID-19 policies, including any related to health benefits, vaccine or testing requirements, safety measures, and any other changes that may be affected by the end of the national emergency or public health emergency.
Because it is unclear whether the agencies will issue additional guidance regarding the early end of the national emergency and whether that affects the timing of the end of the Outbreak Period, employers should take the following additional steps:
- Reevaluate plan language regarding the extensions of deadlines to see if amendments are required. As noted above, the FAQs had stated that plan language providing that the extensions would automatically expire at the end of the Outbreak Period may not need to be amended. However, employers should review how the Outbreak Period was defined in their plan language as an amendment may now be required if the end of the Outbreak Period was defined as 60 days following the end of the national emergency without the caveat that it could be a different date announced by the federal agencies.
- Work with advisors to communicate with insurance carriers and stop loss carriers regarding the use of the July 10, 2023, date as the end of the Outbreak Period to ensure there is no potential gap in coverage or question regarding the applicable deadline for HIPAA special enrollment elections, claims and appeals, and COBRA elections, and premium payments.
This information has been prepared for UBA by Fisher & Phillips LLP. It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.