With the anticipated end of the COVID-19 National Emergency and Public Health Emergency (PHE) on May 11, 2023, the federal government is beginning to unwind some of the policies that have been in place during these periods.

On March 29, 2023, the Departments of Labor, Health and Human Services, and the Treasury (Departments) issued guidance that addresses changes to benefits after the end of these periods, and the reinstatement of normal time frames to make key decisions related to health coverage.

COVID-19 Emergency Periods

Public Health Emergency

The U.S. Department of Health and Human Services initially declared a PHE due to COVID-19 on Jan. 31, 2020. The PHE is scheduled to end on May 11, 2023.

Outbreak Period

The COVID-19 outbreak period will end 60 days after the National Emergency. If the National Emergency ends on May 11, 2023, the outbreak period will end on July 10, 2023.

FAQs

The Departments released FAQs addressing (1) how the end of the PHE affects requirements to cover COVID-19 diagnostic testing and vaccines and (2) how the end of the National Emergency affects extensions of certain time frames for employee benefit plans and their participants and families.

Key clarifications include:

• How to determine the date an item or service was rendered to an individual for purposes of COVID-19 testing coverage requirements;
• When plans and issuers must 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; and
• How key employee benefit plan deadlines (e.g., to request HIPAA special enrollment, elect COBRA coverage, or make COBRA premium payments) will work, using specific examples, after extensions that began during the COVID-19 National Emergency no longer apply. The FAQs assume that the extensions will end on July 10, 2023, as anticipated.

The Departments also released a Medicaid-CHIP SEP Options flyer for employers and other plan sponsors to share with individuals who may request special enrollment in employment-based health coverage as a result of losing their Medicaid or Children’s Health Insurance Program (CHIP) coverage after March 31, 2023. The Departments are encouraging employers to consider amending their plans to provide additional time for these individuals to exercise their special enrollment rights.

Compliance Reminders

Plan sponsors and employers should review the latest guidance carefully. If changes are made to a plan or coverage after the end of the PHE or National Emergency, plan sponsors and employers must clearly communicate these changes, including any limitations on benefits, to participants and beneficiaries before they take effect.

According to the Departments, plan sponsors and employers should consider amending their plans to extend existing time frames to minimize the possibility of individuals losing their benefits.

Additional resources on the ending of the COVID-19 emergency periods are available on the Department of Labor’s Response to COVID-19 website.

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This Legal Update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. ©2023 Zywave, Inc. All rights reserved.