Crossing the COVID-19 finish line: When two Federal emergency declarations end on May 11, what are the employee benefit implications?

As COVID-19 cases, hospitalizations, and deaths in the U.S. are on the decline, Americans have resumed a sense of normalcy for some time now—happy to put the pandemic behind them. Even so, Federal emergency declarations have remained in place or been extended for the duration … but not for long. The Biden administration announced in January that both the COVID-19 national emergency and public health emergency (PHE) issued in 2020 at the beginning of the pandemic by the Trump administration would be winding down.

As the country transitions away from COVID-19 as a public emergency, how will a return to the status quo impact the workforce?

End to the National Emergency:

There is a 60-day period following the end of the National Emergency (starting on May 12)—ticking off the days to the close of the COVID-19 “Outbreak Period”—and extensions that allowed the delay or suspension of certain deadlines involving COBRA, HIPAA special enrollment, and other claim and appeal filing procedures will conclude. Effective July 10, benefit plan deadlines will revert back to pre-pandemic timeframes, including:

  • 14-day deadline for plan administrators to provide COBRA election notices to qualified beneficiaries
  • 60-day deadline in which to elect COBRA coverage
  • 30-day period (or sometimes 60-days) to exercise HIPAA special enrollment rights in a group health plan for birth, adoption, or placement for adoption of a child; marriage, loss of other health coverage; or eligibility for a state premium assistance subsidy
  • 60-day deadline for a participant or qualified beneficiary to provide notice of divorce or legal separation; a dependent child that ceases to be an eligible dependent; or a Social Security disability determination used to extend COBRA coverage
  • Individuals electing COBRA outside of the initial 60-day election period, generally have one year and 105 days after the election notice to make the initial premium payment; individuals electing COBRA within the generally applicable 60-day election period have one year and 45 days after the date of their election to make the initial payment
  • Date by which monthly COBRA premium payments are due
  • Deadline by which participants may file a benefits claim (under the terms of the plan) and deadlines for appealing an adverse benefit determination or requesting an external review, including Healthcare Flexible Spending Accounts (Health FSAs) and Health Reimbursement Arrangements (HRAs) 

End to the Public Health Emergency (PHE): The U.S. Department of Health and Human Services (HHS) issued a roadmap on the transition, and although several flexibilities and actions will not be affected, others will expire, including:

  • Certain Medicare and Medicaid waivers and broad flexibilities for health care providers: Waivers and flexibilities that were necessary to expand facility capacity for the health care system are no longer necessary.
  • Coverage for COVID-19 testing: Medicare beneficiaries enrolled in Part B will continue to have coverage without cost sharing for laboratory-conducted COVID-19 tests when ordered by a provider, but access to free over-the-counter tests will end; the requirement for private insurance companies to cover COVID-19 tests without cost-sharing will end; however, those plans have the option to continue coverage if they choose.
  • Public Readiness and Emergency Preparedness (PREP) Act: Liability protections for countermeasure activities that are not related to any USG agreement (e.g., products entirely in the commercial sector or solely a state or local activity) will end unless another federal, state, or local emergency declaration is in place for the area where countermeasures are administered.
  • The ability of health care providers to safely dispense controlled substances via telemedicine without an in-person interaction will be affected; however, anticipated rulemaking will propose to extend current flexibilities.

Understanding the implications of all these changes may seem a daunting task. Communications and guidance from human resource departments, benefits administrators, and employee benefits and ERISA attorneys can help you decipher pending updates on both the state and federal levels.