Enter to open, tab to navigate, enter to select
White House Announces Continuation of COVID-19 National Emergency and May 11 End Date
Practical Law Legal Update w-038-5074 (Approx. 9 pages)
White House Announces Continuation of COVID-19 National Emergency and May 11 End Date
by Practical Law Employee Benefits & Executive Compensation
| Published on 14 Feb 2023 • USA (National/Federal) |
On February 14, 2023, the White House formally announced that it will temporarily continue the COVID-19 national emergency (NE)—before ending it on May 11, 2023. The Biden administration has indicated that it will take a similar approach regarding the COVID-19-related public health emergency (PHE). The end of the NE and PHE will have significant compliance implications for employee benefit plans and arrangements regarding COVID-19-related requirements and relief that were established during the pandemic.
The White House has formally announced a continuation of the ongoing national emergency (NE) associated with COVID-19, the disease that results from SARS-CoV-2 and its variants (88 Fed. Reg. 9385 (Feb. 14, 2023)). The COVID-19 NE was announced by the Trump administration at the start of the pandemic on March 13, 2020 (effective beginning March 1, 2020), and has been continuously extended since then (85 Fed. Reg. 15337 (Mar. 18, 2020)). Despite declaring that the NE will continue beyond March 1, 2023 (when it would otherwise expire), the White House's notice:
- Acknowledged that the country is in a different phase of the pandemic than it was in March 2020.
- Declared its intent to end the NE on May 11, 2023, as part of an orderly transition.
The White House's February 14 notice is an official declaration of a wind-down plan that the administration announced in late January (Statement of Policy (Jan. 30, 2023)). In its statement of policy, the Biden administration also stated its plan to end the corresponding COVID-19 public health emergency (PHE) on May 11, 2023 (after a brief extension). The Department of Health and Human Services (HHS) declared the PHE on January 31, 2020, and it has been continuously extended since then, though on a different schedule than the NE (Section 319 of the Public Health Service Act (PHSA) (42 U.S.C. § 247d)). Without extension, the COVID-19 PHE will expire on April 11, 2023.
In its statement of policy, the administration noted that an abrupt termination of the NE and PHE would be disruptive to the nation's health care system. In the employee benefits context, for example, the NE and PHE are each associated with several specific requirements and relief provisions (see Practice Note, COVID-19 Compliance for Health and Welfare Plans: COVID-19 Public Health Emergency and National Emergency Declarations).
NE-Related Relief for Benefit Plans
Regarding employee benefit plans, the NE is associated with deadline relief guidance issued by the Departments of Labor (DOL), HHS, and Treasury (collectively, Departments) that provided delayed timeframes for:
- Group health plans, disability and other welfare benefit plans, and retirement plans.
- Participants and beneficiaries in these plans.
In issuing this guidance in 2020, the Departments recognized that participants and beneficiaries may have experienced difficulty completing certain plan-related activities, such as:
- Exercising their health coverage portability rights under the Health Insurance Portability and Accountability Act (HIPAA) (see HIPAA Privacy, Security, and Breach Notification Toolkit).
- Completing health plan continuation coverage actions under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) (see COBRA Toolkit).
- Filing or perfecting benefit claims (see Practice Note, Internal Claims and Appeals Under the ACA).
Under final regulations issued in May 2020, all group health plans that are subject to the Employee Retirement Income Security Act (ERISA) or the Internal Revenue Code (Code) must disregard the period from March 1, 2020, until 60 days after the announced end of the COVID-19 NE for all participants or beneficiaries, wherever located, in calculating certain benefit-related timeframes listed in the final regulations (85 Fed. Reg. 26351 (May 4, 2020)). This set-aside time is known as an "outbreak period."
Under another NE provision, COVID-19-related relief involving donations to leave-based donation programs ended in 2021 (see Standard Document, Leave Sharing and Vacation Donation Policy for Medical Emergencies: Payment Deadline Under COVID-19 Guidance (Extended through 2021)).
Benefits Actions to Which Outbreak Period Guidance Applies
The outbreak period guidance applies to the following actions:
- The 30-day period (or 60-day period, if applicable) to request HIPAA special enrollment (see Practice Note, HIPAA Special Enrollment Rights).
- The 60-day period for electing COBRA (see also Practice Note, COBRA Overview: Duration of Outbreak Periods and Standard Document, COBRA Election Notice).
- The deadline for making COBRA premium payments (see COBRA Toolkit and Practice Note, COBRA Overview: COBRA Premiums).
- The date by which individuals must notify the plan of a COBRA qualifying event or disability determination (see Standard Document, COBRA Qualifying Event Notice (Provided by Covered Employee or Qualified Beneficiary)).
- The deadline by which individuals must file a benefit claim under a plan's claims procedures (see Practice Note, Internal Claims and Appeals Under the ACA).
- The deadline for claimants to file an appeal of a benefits denial under a plan's claims procedures.
- The date by which claimants may request external review after receiving a benefit denial or final internal benefit denial (see Practice Note, External Review Under the ACA).
- The date within which a claimant may file information to perfect a request for external review after finding that the request was not complete.
Duration of Outbreak Periods
The above outbreak periods are subject to statutory duration limits in ERISA and the Code, under which a set-aside period of up to one year is permitted (29 U.S.C. § 1148; 26 U.S.C. § 7508A). One year from March 1, 2020, was February 28, 2021. In follow-on guidance issued in February 2021, the Departments stated that individuals and plans with timeframes subject to the Departments' prior COVID-19 deadline extensions would have applicable periods disregarded until the earlier of:
- One year from the date they were first eligible for relief.
- 60 days after the announced end of the COVID-19 NE (now expected to be May 11, 2023).
Under Notice 2021-01, for example, a claimant who was required to request external review by March 1, 2021, would need to make the request by the earlier of one year from that date (that is, March 1, 2022) or the end of the outbreak period. As a result, each individual has a unique outbreak period keyed to when the individual first becomes eligible for the one-year set-aside period.
PHE-Related Provisions for Benefit Plans
Numerous benefits-related legislative requirements and administrative guidance provisions are associated with the COVID-19 PHE. These provisions include:
- The requirement for group health plans and insurers to cover COVID-19 diagnostic tests for detecting SARS-CoV-2 or diagnosing COVID-19 (see Practice Note, COVID-19 Vaccine and Testing Requirements for Group Health Plans: COVID-19 Diagnostic Testing and Disclosure of Health Providers' Cash Prices). This coverage must be provided:
- without cost-sharing; and
- regardless of whether the services are furnished by an in-network or out-of-network health provider (see COVID-19 Testing, Vaccination, and Relief Provisions for Group Health Plans Toolkit).
- The related requirement for plans and insurers to cover diagnostic over-the-counter (OTC) COVID-19 tests without cost-sharing, pre-authorization, or other medical management (see Article, Over-the-Counter (OTC) COVID-19 Diagnostic Testing Rules for Group Health Plans and Insurers).
- The requirement for plans and insurers to cover "qualifying coronavirus preventive services" (which include COVID-19 immunizations/vaccinations) without cost-sharing (see Practice Notes, COVID-19 Vaccine and Testing Requirements for Group Health Plans and Preventive Health Services Under the ACA, Other Than Contraceptives).
- Permitted coverage for telehealth and other remote care services for employees who are not eligible for any other group health plan coverage offered by the employer (see Practice Note, COVID-19 Compliance for Health and Welfare Plans: Enforcement Relief for Telehealth and Remote Care Services). This provision is available for the duration of any plan year that begins before the end of the COVID-19 PHE.
- An amendment to the health savings account (HSA) rules under which a health plan that does not have a deductible for telehealth and other remote care services can still be treated as a high-deductible health plan (HDHP) (meaning that individuals can have separate coverage for telehealth and other remote care in addition to an HDHP) (see Practice Note, Defined Contribution Health Plans: Overview: COVID-19 Legislation (2020, 2022) on Telehealth Services and HDHPs; CAA-22 Extension). As extended by the Consolidated Appropriations Act, 2023 (CAA-23), this relief is available for plan years beginning after December 31, 2022, and before January 1, 2025 (see Legal Update, Year-End CAA-23 Legislation Extends Access to Telehealth Services).
- Notice-related relief guidance involving certain changes to summaries of benefits and coverage (SBCs) under the ACA (see Practice Note, Summaries of Benefits and Coverage Under the ACA: Departments' Nonenforcement Policy Regarding COVID-19-Related Changes).
- Mental health parity-related relief for performing the "substantially all" and "predominant" tests for financial requirements and quantitative treatment limits during the PHE (see Practice Note, Mental Health Parity: Overview: Parity Analysis and Items and Services Required Under COVID-19 Legislation and Mental Health Parity (MHPAEA) Toolkit).
- Qualified disaster relief payments related to COVID-19 (see Article, COVID-19 and Qualified Disaster Relief Payments Under Code Section 139).
- Excepted benefit relief guidance for employee assistance programs (EAPs) that offer benefits for COVID-19 diagnosis and testing (see Practice Note, Employee Assistance Program (EAP) Compliance: EAPs and COVID-19 Testing).
- Waived standards for obtaining a wellness program reward (including any reasonable alternative standard) under a health-contingent wellness program if participants or beneficiaries face difficulty meeting the standard due to COVID-19-related circumstances (see Practice Note, Wellness Programs: COVID-19 Guidance Regarding Wellness Program Rewards).
- Grandfathered health plan relief guidance for certain plan changes regarding COVID-19 diagnosis or treatment (see Practice Note, Grandfathered Health Plans Under the ACA: Reversing Changes Involving COVID-19 Diagnostic Testing).
Practical Impact
In preparation for the COVID-19 NE and PHE end dates, plan sponsors and their advisors will face plan design decisions regarding the various COVID-19 requirements and relief. For example, plans will need to consider whether they wish to continue paying for COVID-19 tests without cost-sharing. Under a middle-of-the road approach, a plan could be less generous after the PHE regarding how it reimburses OTC COVID-19 tests.
Regarding many of the benefits-related requirements and relief described above, as a result, the end of the NE and PHE could lead plan sponsors and administrators to change certain benefit provisions associated with the emergencies. If so, the plan may need to timely issue summaries of material modifications (SMMs) or updated summary plan descriptions (SPDs) to reflect these changes. For more information, see: