2022 Year End Plan Sponsor “To Do” List (Part 1) Health & Wellness | Snell and Wilmer

Testing for COVID-19: Group health plans must cover (without cost sharing, prior authorization, or medical management requirements) tests for COVID-19 and items and services provided to an individual during visits to a health care provider’s office (including in-person and telemedicine visits), urgent care center visits and emergency department visits that result in ordering or conducting testing for COVID-19 or evaluating such person to determine the need for such testing. For out-of-network providers, group health plans must reimburse either the cash price as listed by the provider on a public website or a lower negotiated rate.

Additionally, under Internal Revenue Service (“IRS”) Notice 2020-15, high-deductible health plans (“HDHPs”) may waive minimum deductibles for testing for COVID-19 without jeopardizing their status of HDHP.

For more information, see our SW Benefits Update, “2021 Year-End Plan Sponsor ‘To-Do’ List (Part 1) Health and Wellness.”

This requirement will expire at the end of the public health emergency related to COVID-19.

In anticipation of the end of the public health emergency COVID-19, group health plans may consider the following:

  • Whether to continue to cover COVID-19 testing;
  • Whether to impose reasonable medical techniques to manage testing for COVID-19;
  • Whether HDHP relief under IRS Notice 2020-15 may end at the end of the public health emergency due to COVID-19; and
  • How to notify plan participants of applicable plan changes (eg, plan amendment, SMM, etc.).
Over-the-counter (“OTC”) testing for COVID-19: Group health plans must cover up to 8 FDA-approved OTC COVID-19 tests per month without cost sharing (ie, deductibles, copayments, or coinsurance), prior authorization, or other medical management requirements. If a plan meets certain requirements, it may limit its reimbursement for OTC COVID-19 tests from non-preferred pharmacies and other retailers to the actual cost or $12 per test, whichever is less.

Additionally, under IRS Notice 2020-15, HDHPs can waive minimum deductions for testing for COVID-19 without jeopardizing their HDHP status.

For more information, see our SW Benefits Update, “Group Health Plans Must Provide Free Over-the-Counter COVID-19 Testing Starting January 15, 2022 – Six *Updated* Takeaways.”

This requirement will expire at the end of the public health emergency related to COVID-19.

In anticipation of the end of the public health emergency COVID-19, group health plans may consider the following:

  • Whether to continue to cover OTC testing for COVID-19;
  • Whether to mandate reasonable medical management techniques for OTC testing for COVID-19;
  • Whether HDHP relief under IRS Notice 2020-15 may end at the end of the public health emergency due to COVID-19; and
  • How to notify plan participants of applicable plan changes (eg, plan amendment, SMM, etc.).
Mental Health Parity: The agencies have provided limited enforcement relief under the MHPAEA by allowing plans to ignore free diagnostic tests for COVID-19 and other services required to be covered under section 6001 of the Families First Coronavirus Response Act (“FFCRA”) for purposes of determining whether the financial requirement or quantitative treatment limitation (1) applies to “substantially all” medical/surgical benefits in a classification, or (2) is more restrictive than the “predominant” level applicable to medical/surgical benefits . For more information, see our SW Benefits Update, “2021 Year-End Plan Sponsor ‘To-Do’ List (Part 1) Health and Wellness.”
This relief will expire at the end of the public health emergency related to COVID-19.

In anticipation of the end of the public health emergency related to COVID-19, group health plans may consider whether continuing to provide benefits for COVID-19 violates the requirements of the MHPAEA.

Vaccinations against COVID-19: Group health plans must cover, without cost sharing, any item, service, or vaccine designed to prevent or mitigate coronavirus if such item is appropriately recommended by the U.S. Preventive Services Task Force or the Centers for Disease Control and Prevention’s Immunization Practices Advisory Committee. disease control and Prevention within 15 working days of making such recommendation. For more information, see our SW Benefits Update, “2021 Year-End Plan Sponsor ‘To-Do’ List (Part 1) Health and Wellness.”
The requirement to cover vaccines provided by network providers continues after the public health emergency against COVID-19 and the national emergency against COVID-19. However, the requirement to cover vaccines provided by out-of-network providers expires at the end of the public health emergency COVID-19.

In anticipation of the end of the public health emergency COVID-19, group health plans may consider the following:

  • Whether to continue to cover free out-of-network COVID-19 vaccines;
  • Whether to mandate reasonable medical management techniques for out-of-network COVID-19 vaccines; and
  • How to notify plan participants of applicable plan changes (eg, plan amendment, SMM, etc.).

Accordingly, from time to time group health plans may consider:

  • Whether to cover free treatment for COVID-19;
  • Whether HDHP relief under IRS Notice 2020-15 may end at the end of the public health emergency due to COVID-19; and
  • How to notify plan participants of applicable plan changes (eg, plan amendment, SMM, etc.).
This relief will expire at the end of the later of the COVID-19 public health emergency and the national COVID-19 emergency for EAP. However, the guidance assumes that on-site medical clinics are always excluded and therefore benefits for COVID-19 diagnostics, testing and vaccinations do not threaten this status.

In anticipation of the end of the public health emergency for COVID-19 and the national emergency for COVID-19, group health plans may consider whether to continue to offer benefits for diagnosis, testing and vaccinations against COVID-19 under the EAP and /or on-site medical clinic and how to notify participants of applicable changes.

Telemedicine: HDHPs may, but are not required to, cover telemedicine and other remote care services at no cost before the required deductible is met with respect to services provided on or after January 1, 2020 for plan years beginning on or before December 31, 2021 .and for months beginning after March 31, 2022 and before January 1, 2023. For more information, see our SW Benefits blog, “HDHP telehealth relief extended for remainder of 2022, but note 3-month relief gap.”

Accordingly, effective January 1, 2023, HDHPs no longer need to do this to avoid tarnishing their HDHP status and making HSA participants ineligible. HDHPs must also notify plan participants of this change.

Extension of the COVID-19 deadline: ERISA health and welfare plans must extend various deadlines during the “epidemic period” related to the Consolidated Budget Reconciliation Act (“COBRA”), special enrollment, and claims and appeals, including external review procedures. For more information, see our SW Benefits Update, “2021 Year-End Plan Sponsor ‘To-Do’ List (Part 1) Health and Wellness.”
The “outbreak period” ends on the earlier of (1) one year from the date an individual first qualifies for relief or (2) 60 days after the declared end of the national COVID-19 emergency. This results in separate one-year extensions of the deadlines outlined above while the national emergency against COVID-19 continues.

When the national emergency against COVID-19 ends, group health plans may consider notifying plan participants of the end of deadline extensions.

Cafe Plan Changes: According to the GVA, IRS Notice 2021-15, and the American Rescue Plan Act of 2021 (“ARPA”), employers may make various temporary changes to their cafeteria plans, including but not limited to a health flexible spending account (“health FSA”) and a assistance to dependents (“DCAP”) carryover relief and health FSA and DCAP relief for a grace period. For more information, see our SW Benefits Update, “2021 Year-End Plan Sponsor ‘To-Do’ List (Part 1) Health and Wellness.”

Although most of the temporary changes to cafeteria plans are no longer applicable, group health plans that have adopted any of these changes must ensure that they adopt an amendment by the end of the first calendar year beginning after the end of the plan year in which the amendment is effective. For example, an employer with a calendar year plan that allows participants to carry over unused amounts remaining in their health FSA and/or DCAP from plan year 2021 to plan year 2022 must change its cafeteria plan to reflect that change by December 31, 2022.

Inclusion of personal protective equipment for COVID-19 (“PPE”): In accordance with IRS Notice 2021-7, Health Savings Accounts (“HSAs”), Archer Medical Savings Accounts, Health FSAs, and Health Reimbursement Arrangements (“HRAs”) may reimburse amounts paid for PPE with the primary purpose of preventing the spread of COVID-19, including masks , hand sanitizer, and sanitizing wipes, effective January 1, 2020.
These changes appear to be permanent and therefore employers wishing to allow reimbursement for these items should consider amending their plans accordingly.

In accordance with IRS Notice 2021-7, the employer may adopt an amendment no later than the last day of the first calendar year beginning after the end of the plan year in which the amendment is effective. However, a retroactive amendment cannot be accepted after 31 December 2022.

Long COVID-19 as a disability: On July 26, 2021, HHS and the Department of Justice issued guidance confirming that “long-term COVID” is a condition that qualifies as a disability under the Americans with Disabilities Act (“ADA”) and the ACA if the condition is a physical or mental impairment that significantly limits one or more major life activities. The guidance notes that long COVID is not always a disability, and employers must evaluate each individual to determine whether an individual’s long COVID condition qualifies. This guidance has the potential to provide a large group of “long-haul carriers” with federal protection against COVID-19 discrimination.

These changes appear to be permanent. Employers should be careful that their benefit plans and wellness programs do not discriminate against employees with disabilities related to COVID-19

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