Plan Sponsor Alert: Planning for the End of the COVID-19 Public Health Emergency and Outbreak Period

Updated March 2023

On March 29, 2023, The Biden Administration issued FAQ on the impact of the anticipated end of the COVID-19 Public Health Emergency (PHE) and the COVID-19 National Emergency (NE) on participants, beneficiaries, and enrollees of group health plans and group and individual health insurance coverage.

To help the American public endure the COVID-19 pandemic, Congress passed laws that provided billions of dollars in emergency funds to buy vaccines, tests, and other treatments that were free to the public. In addition, Congress enabled many federal departments and agencies — including the Department of Labor (DOL) and Internal Revenue Service (IRS) — to adjust rules, compliance regulations, and deadlines affecting health and welfare and retirement plans.

Plan sponsors should be aware of the changes when the pandemic ultimately runs its course. Here we will outline the two separate coronavirus emergency periods that would end — the Public Health Emergency and the COVID Outbreak Period — and what plan sponsors should do to prepare for a transition.

End of the Public Health Emergency

On Jan. 27, 2020, the Department of Health and Human Services (HHS) declared a Public Health Emergency (PHE) that has since been renewed by law every 90 days. President Joe Biden announced on January 30, 2023, that the PHE will end on May 11, 2023.

Key issues for plan sponsors to be aware of when the PHE expires:

• Plans will no longer be required to cover costs of COVID tests and other related services, nor will they be required to cover COVID vaccines (including boosters) and boosters from out-of-network providers without cost-sharing (e.g., deductibles and co-pays), prior authorization, or other medical management requirements.
• Plans will still be required to cover vaccines from in-network providers for free according to the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
• Plan sponsors can no longer offer free telehealth and remote care services for participants who aren’t eligible for major medical coverage.

Plans should consider whether they will continue to cover COVID testing and out-of-network vaccines given the changes in coverage outlined above. At a minimum, plan sponsors should review plan documentation and participant communications to be sure that everything accurately reflects the correct coverage, exclusions, and limitations that will result from the end of the Public Health Emergency.

End of the COVID Outbreak Period

On March 13, 2020, President Donald Trump issued a National Emergency concerning the COVID-19 pandemic. Since then, the relief period — now called the Outbreak Period — has been renewed annually. President Joe Biden announced on January 30, 2023, that the Outbreak Period will also end on May 11, 2023. Benefits plan sponsors will have 60 days after the announced end of the Outbreak Period to revert to several tighter deadlines associated with pre-pandemic conditions, including:

• Thirty-day period (or 60-day, if applicable) to request Health Insurance Portability and Accountability Act of 1996 (HIPAA) special enrollment
• Sixty-day election period for Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation coverage
• Date for making COBRA premium payments
• Date for participants to notify a plan of a COBRA qualifying event or new disability
• Due date for plan sponsors to provide a COBRA election notice
• Due date for participants to file a benefit claim under the plan’s claims procedures
• Deadline for internal and external appeals requests for unfavorable benefits determinations

Plan sponsors should review their plan documents and communications to make sure everything matches the necessary deadlines and it is clear to participants that such deadlines are no longer extended. They should also check that references to “Outbreak Period” are removed from plan documents. 

Be mindful that participant and beneficiary deadlines will vary, and plan sponsors should prioritize sending notices to participants whose deadlines are fast-approaching. Lastly, plan fiduciaries may consider extending certain deadlines (e.g., for 30 to 60 days) to help reduce the shock of these changes to participants.

The CARES Act delayed certain notices that retirement plan sponsors were required to send to participants. Many plan sponsors continued sending notices on schedule. But for those who didn’t, now would be a good time to review your history to determine which notifications were delayed and ensure you can satisfy the required deadlines. 

Insight: All benefits plans should check for compliance

Regardless of how organized you have been throughout the COVID-19 pandemic, all plan sponsors should prepare for the transition out of the COVID Outbreak Period and PHE. These past two years have brought myriad changes for organizations, including hirings and terminations, mergers and acquisitions, and other activities that may have impacted benefits operations. It is vital to ensure your plan is up to date on the required changes and ready for an eventual transition, because the consequences could be significant. 

For example, COBRA violations and potential litigation may increase when we emerge from these pandemic periods. Employers who outsource benefits such as COBRA should connect with their provider to ensure they have the information needed to issue the correct notices on time. 

The earlier you get started, the more prepared you will be when these COVID periods end.