Update on 4/18/2023: The Department of Labor (DOL) has informally commented that the Outbreak Period will continue to run through July 10, 2023 (as originally anticipated and explained below), despite the National Emergency ending earlier than anticipated per H.J. Res. 7. The article below is updated to reflect July 10, 2023, as the end of the Outbreak Period. Formal departmental guidance confirming that July 10, 2023, is in fact the end of the Outbreak Period is anticipated in the coming weeks.

Overview of Legislation and Departmental Action Regarding COVID-19 Emergency Declarations

  • Temporary relief through the public health and national emergencies requires group health plans to extend deadlines that fall within the Outbreak Period, which is the period from March 1, 2020, until sixty (60) days after the announced end of the National Emergency. In addition, items and services related to the testing and diagnosis of COVID-19 are required to be covered by group health plans through the end of the Public Health Emergency.
  • President Biden’s earlier announcement stated that both the Public Health and National Emergencies were intended to expire May 11, 2023.
  • President Biden’s Order ended the National Emergency earlier on April 10, 2023. This did NOT impact the COVID-19 public health emergency, which is still set to expire as of May 11, 2023.
  • Despite the National Emergency terminating early on April 10, 2023 – which technically means the Outbreak Period ends a month earlier on June 9th (60-days after the expiration of the National Emergency) – the DOL’s informal guidance explains that they will still consider May 11, 2023, as the start date for the 60-day expiration. Meaning, the Outbreak Period will therefore continue through July 10, 2023.

Compliance Snapshot 

  • COVID-19 preventive services regarding vaccine coverage mandates will continue to apply upon expiration of the Public Health Emergency, but only on an “in-network” basis. In addition, cost-sharing requirements for COVID-19 testing (including over-the-counter tests) and related services may change.
  • The COVID-19 outbreak period will expire July 10, 2023 (per informal comments from the DOL), impacting employee deadlines such as requests for HIPAA special enrollment rights, electing and paying for COBRA coverage, and submitting claims and appeals; and employer deadlines to furnish certain required notices and disclosures under the Employee Retirement Income Security Act (ERISA).
  • Large employers will no longer be able to offer telehealth services to employees who are not eligible for any other employer-sponsored group health plan (without being subject to certain federal laws).  

Background 

As explained further in our Public Health Emergency Extended Once Again: Impact to Group Health Plans blog, COVID-19 preventative services, including both in- and out- of network vaccine coverage, and benefits for items and services related to the testing and diagnosis of COVID-19 are required to be covered by group health plans through the end of the public health emergency period declared by the Department of Health and Human Services (HHS). Meaning, coverage must be provided without cost-sharing requirements (including deductibles, copayments, and coinsurance), prior authorization, or other medical management techniques. 

In addition, through the end of the plan year that begins before the end of the public health emergency, large employers are able to offer telehealth services to employees who are not eligible for any other employer-sponsored group health plan (i.e., standalone telehealth) without being subject to certain federal laws regulating group health plans.  

Further, as explained in our COVID-19 Health & Welfare Deadline Relief Further Extended blog, deadline relief that “tolls” certain health and welfare benefit deadlines is in effect within the “Outbreak Period,” which began on March 1, 2020, and ends 60 days after the end of the COVID-19 National Emergency. (Per additional guidance, these deadlines could be extended up to 1 year from the original deadline or until the end of the Outbreak Period, whichever occurs earlier.) Per the DOL’s informal comments, the Outbreak Period will end July 10, 2023, which will impact the following deadlines:

  • Employer deadlines to furnish required notices, disclosures, or other documents to participants and beneficiaries pursuant to their obligations under ERISA (e.g., summary plan descriptions (SPD), summary annual reports (SAR), COBRA notices, notice of HIPAA special enrollment rights, etc.). 
  • Plan participant and beneficiary deadlines to: 
  • Request enrollment under their HIPAA special enrollment rights (which allow employees and/or dependents to enroll in group health plan coverage mid-year if a HIPAA special enrollment event occurs); 
  • Elect COBRA continuation coverage and make COBRA premium payments; and 
  • File benefit claims, appeal adverse benefit determinations, request an external review, and perfect an external review request. 

Impact to Group Health Plans & Employer Action 

The statement released describes the Biden Administration’s intent to expire both the Public Health and National Emergency declarations on May 11, 2023. Even though the National Emergency expired early on April 10, 2023, the DOL has informally commented that July 10, 2023, will mark the end of the Outbreak Period. The below chart summarizes the impact to group health plans and how employers can begin preparing for these anticipated changes.

Coverage/Plan Administration Group Health Plan Impact Employer Action 
COVID-19 Testing (including over-the-counter tests) and Related Services Coverage As of May 11, 2023, plans will no longer be required to cover COVID-19 diagnostic testing and related services without cost sharing, prior authorization, or other medical management requirements.  -Confirm with insurers/TPAs how coverage for COVID-19 diagnostic testing-related services, including over-the-counter tests, and COVID-19 vaccines may change (and when).

-Communicate any cost-sharing and coverage changes to participants and distribute Summary of Material Modifications (SMM) or an updated Summary Plan Description (SPD), as needed, at renewal (or within 60 days of the adopted changes if there has been a material reduction in covered services).
COVID-19 Vaccine Coverage As of May 11, 2023, preventive-services coverage will continue to apply for COVID-19 vaccines, but coverage will only be required on an “in-network” basis. As a result, cost-sharing may apply to COVID-19 vaccines received out-of-network. -Confirm with insurers/TPAs how coverage for COVID-19 diagnostic testing-related services, including over-the-counter tests, and COVID-19 vaccines may change (and when).

-Communicate any cost-sharing and coverage changes to participants and distribute Summary of Material Modifications (SMM) or an updated Summary Plan Description (SPD), as needed, at renewal (or within 60 days of the adopted changes if there has been a material reduction in covered services).
Deadline Relief After July 10, 2023 (60 days after the expiration of the national emergency), various pre-COVID deadlines will resume their normal timeframes. Examples include: 

-COBRA elections must be made within 60-days of receiving the election notice; COBRA qualified beneficiaries must pay their first premium within 45 days; 
-HIPAA Special Enrollment Rights (e.g., enrollment due to marriage, birth/adoption, loss of other coverage, loss of Medicaid/CHIP) must be requested within the plan’s timeframe – generally 30 days (60 days for loss of Medicaid/CHIP coverage); and 
-Claims submission must once again follow plan terms (e.g., health FSA claims must be submitted within its run out period, usually 90-days). 		-Discuss with COBRA administrator to understand any COBRA administration changes, if they can identify individuals who may be impacted by this change, and how communications will be handled.  

-Administer HIPAA Special Enrollment Rights requests aligned with timeframes stated in plan terms. 

-Communicate this deadline relief no longer applies to plan participants.   
Standalone Telehealth Large employers will no longer be able to offer telehealth services to employees who are not eligible for any other employer-sponsored group health plan (without being subject to certain federal laws), effective when the plan year that began prior to May 11, 2023, ends. (e.g., effective 1/1/2024 for calendar year plans).   

Note this is different than the continued telehealth/HSA relief that permits high deductible health plans (HDHPs) to provide free or low-cost telehealth services prior to meeting the HDHP minimum deductible to preserve HSA eligibility, described in our blog Extension Continued for Telehealth/HSA Relief. 		-Discuss with carrier/TPA and review telehealth eligibility terms to ensure telehealth services are offered compliant with the ACA and other federal requirements.   

Additional Resources 

Sequoia Forewords: 

The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog. © 2023 Sequoia. All Rights Reserved.

Diane Cross — Diane is a Client Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Diane enjoys spending time with her family, live music, and cycling.