February 1, 2023Client Alert

Preparing ERISA Plans for the End of the COVID-19 Emergency Periods

In response to the COVID-19 pandemic, multiple temporary rules were put into place for group health plans governed by ERISA. Certain coverage mandates apply for the duration of the COVID-19 public health emergency (“Public Health Emergency”) while other rules apply during the COVID-19 outbreak period related to the COVID-19 national emergency (“Outbreak Period”). The Biden Administration has announced it intends to end both emergency periods on May 11, 2023. Below, we discuss these similar but distinct periods as well as highlight practical steps plan sponsors may consider taking to prepare as these emergency periods come to an end.

The COVID-19 Public Health Emergency

This Public Health Emergency was initially declared by the Department of Health and Human Services (“HHS”) as of January 27, 2020. By law, the Public Health Emergency can only last for 90-day periods. The HHS Secretary has the authority to renew the Public Health Emergency, let it expire, or terminate it early. To date, the Secretary has renewed the Public Health Emergency each 90 days since its initial effective date and will renew it once more to continue until May 11, 2023.

For group health plans, the declaration of this Public Health Emergency is important because it determines the period during which group health plans and insurers must pay for COVID-19 tests (including certain over-the-counter tests) and related services without charging cost sharing. As the Public Health Emergency ends, plan sponsors should review coverage of COVID-19 and related costs to determine how the plan will cover such costs going forward. Plan sponsors should also consider whether any continued coverage may cause parity problems under the Mental Health Parity and Addiction Equity Act. As part of this review, plan sponsors should ensure that all plan-related documents and participant communications accurately describe coverage, exclusions, and limitations following the end of the Public Health Emergency. Note, certain changes may be considered a reduction in benefits and would require proper documentation and notice within 60 days of the change. It is also anticipated that millions may lose Medicaid or CHIP coverage, which could trigger special enrollment rights under an employer’s group health plan. Working with brokers and legal counsel is recommended.

The COVID-19 Outbreak Period

The Outbreak Period runs from March 1, 2020, to the earlier of (a) one year from the date an individual is first eligible for relief from certain ERISA deadlines or (b) 60 days after the announced end of the national emergency due to COVID-19, which is set by the U.S. President. President Biden most recently announced he will again extend the national emergency until May 11, 2023.

Pursuant to applicable guidance, health and retirement plans subject to ERISA must disregard the Outbreak Period when determining certain plan deadlines (discussed in more detail in our prior alert). As a quick refresher, health and retirement plans subject to ERISA must disregard the Outbreak Period when determining the following deadlines:

  • 30-day timeframe for a participant to elect HIPAA special enrollment;
  • 60-day timeframe for a participant to elect CHIPRA special enrollment;
  • 60-day timeframe for a participant to elect COBRA continuation coverage;
  • Timeframe for a participant to timely pay COBRA premiums;
  • Timeframe for a participant to notify plan of a qualifying event or disability determination;
  • Timeframe for a participant to file claims, appeals, and requests for external review; and
  • Timeframe for the plan to provide a COBRA election notice.

When the national emergency period ends on May 11, 2023, the 60-day clock will begin counting down toward the end of the Outbreak Period. At the end of the Outbreak Period, the extended deadlines will revert to their pre-emergency timeframes.

Plan sponsors should consider reviewing benefit team protocols, plan-related documents and participant communications to ensure that they accurately describe the applicable deadlines, when the extended deadlines end, and that any notices provided after the Outbreak Period do not reflect the extended deadlines. Because each individual has their own applicable deadline, plan sponsors may also consider how they will handle imminent deadlines in the interim.

back to top