On May 11, 2023, President Biden is planning to end both the COVID-19 National Emergency and the COVID-19 Public Health Emergency (PHE) designations. These emergency declarations have been in place since early 2020 and gave the federal government flexibility to waive or modify certain requirements in a range of areas, including Medicare, Medicaid, and CHIP programs; private health insurance; the authorization of medical countermeasures; liability immunity to providers who administer services; among other things.
Furthermore, legislation such as Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the American Rescue Plan Act (ARPA), the Inflation Reduction Act (IRA), and the Consolidated Appropriations Act, 2023 (CAA) provided additional flexibilities that will also expire.
The CDC and OSHA do not have very many updates, if any, as of today. So, what does that mean for employers?
OSHA: For safety purposes and compliance, employers should continue with the processes they had in place for COVID during the pandemic. These processes fall under the OSHA General Duty Clause, and by following these processes, employers reduce the risk of liability under OSHA law.
Insurance: Group health plans and individual health insurance plans are required to cover COVID-19 tests and testing-related services without cost sharing, prior authorization, or other medical management requirements. In 2022, this requirement was extended to over-the-counter (OTC) COVID-19 tests that are authorized, cleared, or approved by the FDA. 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. This will sunset.
Further, plans and issuers have to cover COVID-19 vaccines without cost sharing even when provided by out-of-network providers and must reimburse out-of-network providers a reasonable amount for vaccine administration. Vaccines will now likely have cost share under these plans.
Various individual deadlines were tolled for one year or until 60 days after the end of the National Emergency, whichever is earlier. Assuming the National Emergency ends on May 11, the tolling period is sixty days July 10, 2023, for the following deadlines:
- Electing COBRA and making COBRA premium payments
- Submitting claims and appeals
- Requesting (and providing information for) external review
- Notifying the plan of a qualifying event or disability
- Requesting special enrollment
In addition, currently, plans may provide notice of a material modification as soon as reasonably practicable, if the modification:
- Provides greater coverage for testing and treatment of COVID,
- Adds telehealth benefits, or
- Reduces or eliminates cost sharing for telehealth benefits.
After the end of the National Emergency and the PHE, this relief will no longer be available.
HDHPs: Currently, an HDHP may offer COVID testing and treatment to enrollees who have not yet met the deductible, without jeopardizing enrollees' eligibility for an HSA. This relief continues until further notice by the IRS.
Telehealth: Currently, a large employer may offer a stand-alone telehealth plan that is exempt from many of the rules under the Affordable Care Act. The exemption lasts until the end of the latest plan year that begins during the PHE (until 12/31/2023 for calendar-year plans). On December 23, 2022, Congress approved a year-end Consolidated Appropriations Act, 2023 (“CAA 2023”) which extended it until December 31, 2025. There is a movement to extend the telehealth aspect of plan coverage permanently.
HR needs to consult with their agents, providers, and ERISA attorneys to see if they need to update their plans and how to communicate with employees about any changes to their current situation (such as cost share, etc.). For example, COBRA administration will revert, and employers do not want to get caught up in a COBRA lawsuit. Employers will need to decide whether they will cover the costs of vaccines and testing once the emergency is over.
Source: Venable LLP 2/3/23, KFF 1/31/23