The U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the U.S. Department of Treasury recently released FAQs concerning the implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the Health Insurance Portability and Accountability Act (HIPAA). These FAQS are in response to the Biden administration’s announcement that the National Emergency Concerning the Novel Coronavirus Disease 2019 (COVID-19) Pandemic (COVID-19 National Emergency) and the Public Health Emergency (PHE) will end on May 11, 2023.
COVID-19 Diagnostic Testing
The FAQs clarify that § 6001 of the FFCRA and § 3202 of the CARES Act do not require plans and issuers to cover items and services related to COVID-19 diagnostic testing furnished after the end of the PHE. If plans choose to provide coverage for these items and services, they can impose cost-sharing requirements (including deductibles, copayments, and coinsurance), prior authorization, or other requirements. Plans and issuers are encouraged to continue to provide coverage for these items and services without imposing cost-sharing or medical management requirements after the end of the PHE.
If plans and issuers plan to stop coverage or impose cost-sharing or medical management requirements for these items and services, the FAQs encourage them to notify participants, beneficiaries, and enrollees of that information.
Rapid Coverage of Preventive Services and Vaccines for Coronavirus
Under § 3203 of the CARES Act, plans and issuers must provide coverage for COVID-19 vaccines and administration of those vaccines after the PHE ends. Therefore, plans and issuers need not provide benefits for these vaccines from out-of-network providers if they have network providers. If they have no network providers to provide the vaccines, they must provide coverage through an out-of-network provider.
Extension of Certain Timeframes for Employee Benefit Plans Subject to ERISA and the Code, Participants, and Beneficiaries Affected by the COVID-19 Outbreak
The federal government extended certain timeframes for employee benefits plans subject to ERISA and the Code due to COVID-19. These timeframes include the timeframe to opt for COBRA continuation coverage, request special enrollment, make COBRA premium payments, and provide a COBRA election notice. Other affected timeframes involve notifying a plan of a qualifying event, determinations of disability, benefit claims, appeals, requests for external review, and filing information to perfect incomplete requests for external review.
This relief was scheduled to continue until 60 days after the COVID-19 National Emergency or another date chosen by DOL, the IRS, and the Treasury Department. Since the COVID-19 National Emergency will end on May 11, 2023, the extensions of these timeframes will end 60 days later, on July 10, 2023.
For example, if a qualifying event occurs before July 10, 2023, an employee will have 60 days after that date, or until September 8, 2023, to opt for COBRA continuation coverage. If a qualifying event occurs after July 10, 2023, the extension of timeframes during COVID-19 no longer applies. In that case, the employee has only 60 days from the qualifying event date to opt for COBRA continuance coverage.
The FAQS explicitly note that nothing in the Code or ERISA prevents group health plans from maintaining extended or longer timeframes, and the departments encourage plans to do so.
Special Enrollment in Group Health Plan and Group or Individual Health Insurance Coverage after Loss of Eligibility for Medicaid or Children’s Health Insurance Program (CHIP) Coverage or after Becoming Eligible for Premium Assistance under Medicaid or CHIP
Since the PHE began, state Medicaid programs, with limited exceptions, have not terminated the benefits of individuals enrolled in these programs between March 18, 2020, and March 31, 2023. As state Medicaid and CHIP programs return to regular eligibility and enrollment standards, individuals may need to transition to other healthcare coverage, such as through the Marketplace or an employer-sponsored group health insurance plan. Over the next few months, millions of individuals will be subject to redetermination of eligibility in state Medicaid and CHIP programs.
Individuals who lose Medicaid or CHIP program coverage between March 31, 2023, and July 10, 2023, can request special enrollment in group health insurance plans for which they are otherwise eligible until 60 days following that date or until September 8, 2023. These individuals also are eligible for a special enrollment period for coverage through the Health Insurance Marketplace. their state’s Marketplace, or other individual health insurance, within 60 days before or after the date that they lost coverage from the Medicaid or CHIP coverage.
A group health insurance plan can allow a longer special enrollment period or one beyond the statutorily required minimum of 60 days. Employers and group health insurance plans are encouraged to provide for lengthier special enrollment periods and to make sure that their benefits staff are aware of upcoming Medicaid and CHIP eligibility redeterminations.
Benefits for COVID-19 Testing and Treatment and Health Savings Accounts (HSAs)/High Deductible Health Plans (HDHPs)
Due to the PHE, the Treasury Department and the IRS issued guidance in March 2020 concerning HDHPs and the provision of service and items concerning testing for and treatment of COVID-19. The guidance states that a health plan that otherwise satisfies the requirements to be an HDHP continues to be an HDHP, even if the plan provides these services and items before the deductible is satisfied. As a result, these individuals also can contribute to an HSA despite the coverage of those services and items.
The end of the PHE does not alter that guidance at this point. The Treasury Department and the IRS are reviewing whether this guidance will continue to be appropriate, in light of the ending of the PHE, and expect to issue additional guidance soon.
HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.
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