The COVID-19 pandemic brought multiple temporary changes for ERISA-governed group health and welfare plans. Certain coverage mandates apply for only the duration of the COVID-19 public health emergency (the Public Health Emergency), while certain ERISA deadline relief applies only during the COVID-19 outbreak period (the Outbreak Period). This LawFlash provides an overview of these two similar—but not identical—legal COVID-19 emergency periods, as well as practical guidance for plan sponsors and administrators anticipating the announced end of the special COVID-19 rules.
The secretary of the US Department of Health and Human Services (HHS) used authority under Section 319 of the Public Health Service Act to initially declare the Public Health Emergency as of January 27, 2020. By law, the Public Health Emergency can only last for 90-day increments. The HHS secretary has the authority to terminate the Public Health Emergency early, let it expire, or renew it.
Because the secretary most recently renewed the Public Health Emergency on July 15, 2022, the Public Health Emergency is currently set to expire in mid-October 2022.
Though we currently anticipate the Public Health Emergency will continue until October 13, 2022, Biden-Harris administration representatives have announced that HHS will provide states with at least 60 days’ advance notice of the end of the Public Health Emergency.
Therefore, now is a good time for plan sponsors and administrators to start to plan for what will happen when the Public Health Emergency officially ends:
The Outbreak Period is the period between March 1, 2020, and 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 US president.
Former President Trump used authority under Section 201 of the National Emergencies Act to initially declare a COVID-19-related national emergency as of March 1, 2020. By law, the national emergency continues until (1) the president does not issue an annual continuation notice, (2) the president terminates it, or (3) a joint resolution of Congress terminates it.
Because President Biden most recently issued an annual continuation notice as of March 1, 2022, the national emergency will end on February 28, 2023 (absent additional action to extend it further or terminate it early).
Assuming the 60-day clock counting down the end of the Outbreak Period will start ticking on February 28, 2023, plan sponsors should note that the following deadlines will revert to their shorter pre-pandemic lengths:
While not connected to the Public Health Emergency or the Outbreak Period, the CARES Act temporarily permitted pre-deductible coverage of telehealth services for people with high-deductible health plans (HDHPs) without that coverage jeopardizing health savings account (HSA) eligibility for plan years beginning on or before December 31, 2021.
Effective April 1, 2022, Congress extended this first-dollar coverage relief through December 31, 2022.
Though many hope this relief becomes permanent beyond 2022, plan sponsors and administrators should not count on further extensions. Without additional action, plan sponsors and administrators should assume that offering free telehealth to HDHP participants will not be available for plan years beginning on or after January 1, 2023.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following:
Lisa H. Barton
Craig A. Bitman
Claire P. Rowland