The Biden Administration is currently expected to end the COVID-19 National Emergency on May 11, 2023. In preparation, the departments of Labor, Treasury, and Health and Human Services released Q&A Part 58 on March 29.
In addition to reviewing the highlights below, you are strongly encouraged to read and digest the complete, 15-page Q&A document.
COVID-19 Diagnostic Testing
Q1: Do the COVID-19 testing coverage requirements under section 6001 of the FFCRA apply to items and services furnished after the end of the PHE?
No. A plan or issuer is not required under section 6001 of the FFCRA to cover COVID-19 diagnostic tests and associated items or services furnished after the PHE ends. Any plan or issuer that provides coverage after the PHE ends is not prohibited from imposing cost-sharing requirements, prior authorization, or other medical management requirements for those items.
Q2: Must plans and issuers notify participants and enrollees if they change the terms of their coverage for the diagnosis or treatment of COVID-19 after the end of the PHE?
Plans and issuers are encouraged to continue benefits for COVID-19 diagnosis and treatment and for telehealth and remote care services after the end of the PHE. However, they are not required to do so. They are also encouraged to notify participants, beneficiaries, and enrollees of key information regarding coverage of COVID-19 testing, diagnosis, and treatment, including the date when the plan or issuer will stop coverage or begin to impose cost-sharing requirements, prior authorization, or other medical management requirements on COVID-19 tests.
If the plan or issuer plan or issuer makes a material modification to any of the plan or coverage terms that would affect the content of the summary of benefits and coverage (SBC) that occurs other than in connection with a renewal or re-issuance of coverage, the plan or issuer must provide notice of the modification to participants and enrollees not later than 60 days before the date on which the modification will become effective.
Q3: Do the reimbursement and cash price posting requirements under section 3202 of the CARES Act apply to COVID-19 diagnostic tests furnished after the end of the PHE?
No. Sections 3202(a) and 3202(b) of the CARES Act apply only during the PHE beginning or after March 27, 2020. However, providers of diagnostic tests for COVID-19 are encouraged to continue to make the cash price available on the provider’s public internet website for a sufficient period (e.g., at least 90 days) after the end of the PHE.
Rapid Coverage of Preventive Services and Vaccines for Coronavirus
Q4: Do the statutory requirements related to rapid coverage of preventive services for coronavirus under section 3203 of the CARES Act apply to qualifying coronavirus preventive services furnished after the end of the PHE?
Yes. After the PHE ends, plans and issuers subject to section 3203 of the CARES Act must continue to cover qualifying coronavirus preventive services, including all COVID-19 vaccines, without cost sharing. However, nothing requires a plan or issuer to provide benefits for the services when delivered by an out-of-network provider if the plan or issuer has a network of providers. Similarly, nothing precludes a plan or issuer with a network of providers from imposing cost-sharing for services when delivered by an out-of-network provider.
Extension of Certain Timeframes for Employee Benefit Plans subject to ERISA and the Code, Participants, and Beneficiaries Affected by the COVID-19 Outbreak
Q5. Following the anticipated end of the COVID-19 National Emergency, on what date does the Outbreak Period end?
DOL, Treasury, and the IRS anticipate that the Outbreak Period will end on July 10, 2023 (60 days after the anticipated end of the COVID-19 National Emergency on May 11). As of the last day of the Outbreak Period, the extensions under the emergency relief notices for timeframes that began during the COVID-19 National Emergency no longer apply. However, nothing in the Code or ERISA prevents a group health plan from allowing for longer timeframes for employees, participants, or beneficiaries to complete these actions, and group health plans are encouraged to do so.
The following examples assume that the Outbreak Period will end on July 10, 2023, and that the group health plan uses the minimum timeframe that the statute permits for individuals to complete certain elections or other actions.
- Example 1 (Electing COBRA)
Facts: Individual A works for Employer X and participates in the group health plan. Individual A experiences a qualifying event for COBRA purposes and loses coverage on April 1, 2023. Individual A is provided a COBRA election notice on May 1, 2023.
What is the deadline for Individual A to elect COBRA? The last day of Individual A’s COBRA election period is 60 days after July 10 (the end of the Outbreak Period), or September 8, 2023.
- Example 2 (Electing COBRA)
Facts: Same facts as Example 1, except the qualifying event and loss of coverage occur on May 12, 2023, and Individual A is provided a COBRA election notice on May 15.
What is the deadline for Individual A to elect COBRA? Because the qualifying event occurred on May 12, after the end of the COVID-19 National Emergency but during the Outbreak Period, the extensions still apply. The last day of Individual A’s COBRA election period is 60 days after July 10, or September 8, 2023.
- Example 3 (Electing COBRA)
Facts: Same facts as Example 1, except the qualifying event and loss of coverage occur on July 12, 2023, and Individual A is provided a COBRA election notice on July 15.
What is the deadline for Individual A to elect COBRA? Because the qualifying event occurred on July 12, after the end of both the COVID-19 National Emergency and the Outbreak Period, the extensions do not apply. The last day of Individual A’s COBRA election period is 60 days after July 15, or September 13, 2023.
- Example 4 (Paying COBRA Premiums)
Facts: Individual B participates in Employer Y’s group health plan. Individual B has a qualifying event and receives a COBRA election notice on October 1, 2022. Individual B elects COBRA continuation coverage on October 15, 2022, retroactive to October 1.
When must Individual B make the initial COBRA premium payment and subsequent monthly COBRA premium payments? Individual B has until 45 days after July 10, 2023 (the end of the Outbreak Period), or August 24, 2023, to make the initial COBRA premium payment. The initial COBRA premium payment would include the monthly premiums for October 2022 through July 2023. The premium payment for August 2023 must be paid by August 30, 2023 (the last day of its 30-day grace period). Subsequent monthly premium payments would be due the first of each month, subject to a 30-day grace period.
- Example 5 (Special Enrollment Period)
Facts: Individual C works for Employer Z. Individual C is eligible for Employer Z’s group health plan, but previously declined participation. On April 1, 2023, Individual C gave birth and would like to enroll herself and the child in the plan. However, open enrollment does not begin until November 15, 2023.
When may Individual C exercise her special enrollment rights? Individual C and her child qualify for special enrollment in Employer Z’s plan as early as the date of the child’s birth, April 1. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the Outbreak Period), or August 9, as long as she pays the premiums for the period of coverage after the birth.
- Example 6 (Special Enrollment Period)
Facts: Same facts as Example 5, except that Individual C gave birth on May 12, 2023.
When may Individual C exercise her special enrollment rights? Individual C and her child qualify for special enrollment in Employer Z’s plan as of the date of the child’s birth, May 12. Because Individual C became eligible for special enrollment on May 12, after the end of the COVID-19 National Emergency but during the Outbreak Period, the extensions still apply. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the Outbreak Period), or August 9, as long as she pays the premiums for the period of coverage after the birth.
- Example 7 (Special Enrollment Period)
Facts: Same facts as Example 5, except that Individual C gave birth on July 12, 2023.
When may Individual C exercise her special enrollment rights? Individual C and her child qualify for special enrollment in Employer Z’s plan as of the date of the child’s birth, July 12. Because Individual C became eligible for special enrollment on July 12, after the end of both the COVID-19 National Emergency and the Outbreak Period, the extensions do not apply. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 12, 2023, or August 11, as long as she pays the premiums for the period of coverage after the birth.
Special Enrollment in Group Health Plan and Group or Individual Health Insurance Coverage after Loss of Eligibility for Medicaid or Children’s Health Insurance Program (CHIP) Coverage or after Becoming Eligible for Premium Assistance under Medicaid or CHIP
Q6: Following the expiration of the continuous enrollment condition, if an individual loses Medicaid or CHIP coverage due to a loss of eligibility for such coverage, is the individual entitled to a special enrollment period to enroll in an employer-sponsored group health plan for which they are otherwise eligible and had previously declined to enroll, or a special enrollment period in the individual market?
Yes. Employees and their dependents are eligible for special enrollment in a group health plan and group health insurance, if:
- They are otherwise eligible to enroll in the plan
- They were enrolled in Medicaid or CHIP coverage
- The Medicaid or CHIP coverage was terminated due to loss of eligibility.
Under these circumstances, the employee typically must request coverage under the group health plan (or health insurance coverage) within 60 days after Medicaid or CHIP coverage is terminated. However, nothing in the Code or ERISA prevents a group health plan from allowing for a longer special enrollment period (i.e., extending beyond the minimum 60-day statutory requirement) for employees, participants, or beneficiaries to complete these actions, and employers and group health plans are encouraged to do so.
Q7: What else can employers, particularly those that employ workers who are likely benefiting from Medicaid or CHIP coverage, do to assist their employees in maintaining health coverage?
Employers can work with their plan or issuer to extend the special enrollment period beyond the minimum 60 days required by statute. Additionally, employers are encouraged to ensure that their benefits staff know about the upcoming resumption of Medicaid and CHIP eligibility determinations.
Benefits for COVID-19 Testing and Treatment and Health Savings Accounts (HSAs)/High Deductible Health Plans (HDHPs)
Q8. May an individual covered by an HDHP that provides medical care services and items purchased related to testing for and treatment of COVID-19 before the satisfaction of the applicable minimum deductible contribute to an HSA?
Yes. An individual covered by an HDHP that provides medical care services and items related to COVID-19 testing and treatment prior to the satisfaction of the applicable minimum deductible may continue to contribute to an HSA. Treasury and the IRS anticipate issuing additional guidance on this point.
The above is for informational purposes only. It should not be construed as legal advice. Please consult your third-party administrator (TPA) or qualified benefits counsel for more information.
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