President Biden signed legislation terminating the COVID-19 National Emergency effective May 11, 2023, which ends several of the employee benefit plan mandates that were implemented when the National Emergency was initially declared on March 13, 2020, which was retroactively effective March 1, 2020.
Those mandates required that certain time periods and dates for special enrollment under the Health Insurance Portability and Accountability Act (“HIPAA”), COBRA continuation coverage, and internal claims and appeals and external review be disregarded (“Disregarded Periods”) when determining the due dates for certain elections and other actions by employee benefit plans subject to ERISA and the Internal Revenue Code during the COVID-19 National Emergency. Retirement plan elections were also impacted by the Disregarded Periods. Additionally, the guidance required that ERISA-covered health plans cover certain COVID-19-related expenses without member cost-sharing.
To assist employers in understanding the impact of the end of the National Emergency on employee benefit plans, the Departments of Labor (“DOL”), Health and Human Services (“HHS”), and Treasury (collectively the “Departments”) published FAQs Part 58 on the Families First Coronavirus Response Act (“FFCRA”), the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), and HIPAA. FAQs about Families First Coronavirus Response Act, Coronavirus Aid, Relief, and Economic Security Act, and Health Insurance Portability and Accountability Act Implementation Part 58 (dol.gov)
COVID-19 Testing Coverage Requirements
The FFCRA requires plans and issuers to cover COVID-19 diagnostic tests that meet statutory requirements and certain associated items and services without imposing any cost-sharing requirements, prior authorization, or other medical management requirements. After May 11, 2023, plans and issuers are not required to cover COVID-19 diagnostic tests and associated items or services. Any plan or issuer that provides coverage for COVID-19 diagnostic testing furnished after May 11, 2023, including over-the-counter COVID-19 diagnostic tests purchased after that date, is not prohibited from imposing cost-sharing requirements, prior authorization, or other medical management requirements.
Rapid Coverage of Preventative Services and Vaccines
The CARES Act requires non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage to cover, without cost-sharing requirements, any qualifying coronavirus preventive service (within the meaning of Section 2713(a) of the Public Health Service Act (PHS Act)). The rapid coverage of preventive services for coronavirus will continue to apply after May 11, 2023. Therefore, plans and issuers subject to Section 3203 of the CARES Act must continue to cover, without cost sharing, qualifying coronavirus preventive services within the scope of the Emergency Use Authorization (EUA) or Biologics License Application (BLA) for the particular vaccine and their administration, pursuant to section 2713(a) of the PHS Act and its implementing regulations. This coverage must be provided within 15 business days after the date on which an applicable recommendation is made by USPSTF or ACIP regarding the qualifying coronavirus preventive service.
Disregarded Periods-Extension of Timeframes
On May 4, 2020, the Departments issued the Joint Notification of Extensions of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak (Joint Notice) in the Federal Register. The Joint Notice stated that certain time periods and dates for HIPAA special enrollment, COBRA continuation coverage, and internal claims and appeals and external review must be disregarded when determining the due dates for certain elections and other actions by employee benefit plans, in part, subject to ERISA and the Code. Employee Benefits Security Administration (EBSA) Disaster Relief Notice 2021-01, issued on February 26, 2021 (EBSA Notice), clarified that the disregarded periods apply from the date each individual or plan was first eligible for relief under the Joint Notice until the earlier of (a) 1 year from the date they were first eligible for relief, or (b) 60 days after the announced end of the COVID-19 National Emergency (July10, 2023), which is the end of the “Outbreak Period.” All Disregarded Periods will end as of the last day of the Outbreak Period. 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.
Retirement Plan Considerations
Retirement plan administration was also impacted by the National Emergency. Timeframes governing ERISA disclosures, claims procedures and participant contribution remittance and loan repayments were extended due to the Disregarded Periods. Additionally, the CARES Act allowed defined contribution plans to offer coronavirus-related distributions to eligible participants, increased the loan limitation, allowed the suspension of loan repayments and allowed defined contribution plans to waive required minimum distributions (RMD) for 2020, as well as 2019 RMDs for participants with RBD of April 1, 2020. Due to the end of the National Emergency, plan sponsors are encouraged to review their administrative processes in order to retore retirement plan administration to pre-pandemic operation.
Please join us on Thursday, May 25 from 10:00am - 10:30am PT for a webinar discussing of these and other important topics and best practices for plan administrative changes in anticipation of the end of the COVID-19 National Emergency. Click here to register.