The COVID-19 Emergency Period Comes to an End Sooner Than Anticipated

On April 10, 2023, President Biden signed legislation passed by Congress officially ending the COVID-19 National Emergency. As a result, the National Emergency (NE) will now end a full month prior to the May 11, 2023 date that was previously announced by the Biden Administration back in January of 2023. While the end of the NE will now arrive sooner, it should be noted that the Public Health Emergency (PHE) will indeed end on May 11, 2023, as initially announced in January.

We discussed the proposed dates in which the pandemic was supposed to come to an end along with the full scope of the impact of the legislation at that time in our blog entry.

 Background on the National COVID-19 Emergency and “Outbreak Period” Timeline

In 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) and the Internal Revenue Service (IRS) issued regulatory guidance extending certain timeframes impacting group health plans during the COVID-19 National Emergency. That guidance established a period of time from March 1, 2020 until 60 days after the announced end of the COVID-19 National Emergency (or such other date announced by EBSA and the IRS in later guidance) as the “Outbreak Period.”

In February of 2021, EBSA and the IRS released additional guidance in Disaster Relief Notice 2021-01, which stated that "individuals and plans with timeframes that are subject to the relief under the Notices will have the applicable periods under the Notices disregarded 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 National Emergency (the end of the Outbreak Period). On the applicable date, the timeframes for individuals and plans with periods that were previously disregarded under the Notices will resume. In no case will a disregarded period exceed 1 year."

On February 18, 2022, President Biden issued a notice extending the COVID-19 National Emergency through March 1, 2023. In its January 30, 2023 announcement, the administration stated that the National Emergency would be extended one final time and (speculatively) expire on May 11, 2023.

On March 29, 2023, the DOL, HHS, and IRS (collectively, the Departments) jointly issued FAQs anticipating a revised pandemic end date, as relayed in Q5.

Fast forward to April 10, 2023, and we now have a bit of enhanced clarity (or so we think…) regarding the dates associated with the official end of the pandemic. 

Note: While we await more formal guidance from the Departments officially confirming the end of the Outbreak Period, based on the April 10 FAQs that were issued our best current understanding regarding the conclusion of the pandemic and the trickledown effects is as follows below. We will continue to monitor the decisions of the Departments as it pertains to the exact timeline, but plans should begin preparing for something in the range outlined in the below guidance. Once we receive additional information from the Departments, we will provide further updates accordingly. 

Impact

With respect to the Outbreak period, this means that the clock will still run for one year from the date an individual was first eligible for relief, but all Outbreak Period relief will end as June 9, 2023 (60 days after the April 10 expiration date.)

Practice Tip:  If you think about June 10, 2022 as a “turning point”, events and deadlines prior to that day will enjoy a one-year extension to the deadline/timeline that would otherwise apply. If the event/deadline occurs on or after June 10, 2022, they will not get the full year. They’ll get the lesser of the end of the outbreak period plus their standard timing (30 days, 60 days, as applicable).

• Deadlines and grace periods that would have otherwise begun on or before June 10, 2022 will enjoy a full one-year extension to their deadline or grace period.
  
  • • Example 1: Plan A normally provides 60 days from the date of their COBRA Election Notice to elect COBRA. Fred’s COBRA Election Notice was dated April 15, 2022. Under the Outbreak Period, Fred’s 60-day COBRA election window is tolled from April 15, 2022 through April 14, 2023, and his 60-day election period runs through June 13, 2023 (60 days from April 14, 2023). 
    • Example 2: Plan B requires an employee to request that a newborn be enrolled within 30 days of the date of birth. Wilma’s newborn (Pebbles) arrived on April 15, 2022. After disregarding April 15, 2022 through April 14, 2023, Wilma has until May 14, 2023 (30 days after April 14, 2023) to enroll Pebbles.

• Deadlines and grace periods that would have otherwise begun on or after June 11, 2022 will not get a full-year extension. Instead, their grace period or window to act will begin June 11, 2023.
  
  • • Example 1: Same as the first example above, but Fred’s COBRA Election Notice was dated November 8, 2022. Fred’s 60-day period to elect COBRA was tolled until June 9, 2023 (the last day of the Outbreak Period), and his 60-day election period runs through August 8, 2023 (60 days from June 9, 2023). 
    • Example 2: Same as the second example, above, except baby Pebbles arrived on November 8, 2022. After disregarding November 8, 2022 through June 9, 2023, Wilma’s deadline to enroll Pebbles would be July 9, 2023 (30 days from the Outbreak Period’s June 9, 2023 end date).

Note that while the tolling (deadline extensions) apply to HIPAA Life Events such as birth, adoption, placement for adoption or marriage they do not apply to the other (optional) Section 125 mid-year election change reasons (e.g., significant cost changes, the spouse’s Open Enrollment, etc). Further, events that lead to a loss of coverage, such as divorce or the death of an employee’s spouse if it leaves the employee without coverage, may also trigger a HIPAA Special Enrollment Right (HIPAA SER). 

Finally, as the administration works to formalize the end of the outbreak period, it may issue additional guidance that could alter the current understanding of how this all will work. We will continue to update as additional guidance warrants.

COVID-19 Public Health Emergency

Impact

On May 11, 2023, the following federal requirements for group health plans will expire (however, when each carrier or claims paying TPA will choose to implement that change is to be determined):

• • Coverage of COVID-19 diagnostic testing and related services (including tests administered by providers and over-the-counter tests) without cost-sharing, prior authorization, or other medical management requirements.
  • Coverage of COVID-19 vaccines—including booster doses—from out-of-network providers without cost-sharing, prior authorization, or other medical management requirements. In-network COVID-19 vaccinations will remain free as preventive services under the ACA as well as other federal laws.
  • The ability to offer stand-alone telehealth benefits and other remote care services to participants who are not eligible for major medical coverage.
  • The suspension of enforcement actions under the Mental Health Parity and Addiction Equity Act (MHPAEA) related to the coverage of COVID-19 testing items and services without cost-sharing, prior authorization, or other medical management requirements.