The Biden administration on October 13 extended the COVID-19 public health emergency for an additional 90 days, keeping the emergency measures in place until January 11. The public health emergency was first declared in January 2020 and has since been renewed every 90 days, but some political analysts believed the administration could let the emergency declaration expire after President Joe Biden said that “ the pandemic is over” in a September interview on CBS’s “60 Minutes.”
Health and Human Services (HHS) Secretary Xavier Becerra said he extended the health emergency “in consultation with public health officials, if necessary.”
The HHS secretary can end the public health emergency earlier than January 11 or extend it again. Before the public health emergency expires, HHS said it will give at least 60 days’ notice.
Implications for Employer Coverage
“This public health emergency declaration is important to group health plan sponsors because it defines the period during which group health plans and insurers must pay for COVID-19 testing (including certain over-the-counter tests) and related with them services without charging cost-sharing,” according to a compliance alert from human resources consulting firm Segal.
Segal noted that group health plans and non-grandfathered insurers must also cover the COVID-19 vaccines without cost sharing both in-network and out-of-network. After the public health emergency expires, non-legacy plans may limit coverage of the COVID-19 vaccine to in-network providers.
Coverage requirements apply to both payment by medical plans and pharmacy benefits.
Self-insured employers must ensure that their health and pharmacy coverage meets all emergency ordering requirements by coordinating with their third-party plan administrators. Fully insured employers should verify that their insurance carriers meet all current non-cost-sharing requirements.
Reimbursement rate for out-of-network providers
While the public health emergency is in effect, when preventive services such as tests and vaccines for COVID-19 are provided by an out-of-network health care provider, employer plans must reimburse the provider a “reasonable amount,” as determined by comparison prevailing market rates for such services, Segal advised. Federal agencies said they would consider Medicare payment rates reasonable.
Costs are passed on to employers
HHS announced on August 30 that if Congress does not authorize additional funding, then “as early as January 2023, the administration expects to run out of federal funds to purchase or distribute vaccines.” As a result, the government would shift payments for vaccines to private health plans and insurers, similar to treatment for seasonal flu or other vaccines, Segal said.
Similarly, HHS said it expects to shift payment for oral antiviral drugs against COVID-19, such as Paxlovid, to plans and insurers in mid-2023.
“Therefore, sponsors of group health plans that cover COVID-19 vaccines and medications may see an increase in costs as the federal government opts out of paying” those costs, Segal said.
Other health plan requirements, most notably the requirement to extend certain deadlines related to COBRA, special enrollment and claims and appeals, “are tied to a different declaration of a COVID-19 emergency — the national emergency” that was declared in March 2020, Segal explained.
Earlier this year, Biden again extended the national emergency against COVID-19, which was set to expire on March 1, 2022.
According to the Groom Law Group, plan administrators “must take care to calculate deadlines correctly.”
Keeping the national emergency in effect, the attorneys said, means the extended deadlines listed below are extended until February 2023 (or, if earlier, 60 days from the end of the national emergency):
For plan participants:
- COBRA Qualifying Event and Expiry Extension Notices. The 60-day deadline by which qualified beneficiaries must notify the plan of certain qualifying events (eg, divorce or legal separation, a dependent child who ceases to be dependent under the terms of the plan) or a determination of disability.
- COBRA Elections. The extended 60-day period for electing COBRA continuation coverage.
- COBRA premium payments. The deadlines of 45 days (for initial payment) and 30 days (for subsequent payments) for timely payment of COBRA premiums.
- HIPAA Special Enrollment Period. The 30-day deadline (in some cases 60 days) to apply for enrollment in a group health plan following a special enrollment event (ie, birth, adoption or placement for adoption of a child, marriage, loss of other health coverage, or eligibility for government premium subsidy).
- Claims and appeals for benefits. The deadline under the plan by which participants can file a claim for benefits (under the terms of the plan) and the deadline for appealing an adverse benefit decision.
- External review. The four-month period (for the federal external review process; this period may be different for a state external review process) for which the claimant must submit a request for external review.
- Refine an external review request. The four-month period (or 48-hour period after receiving notification of an incomplete request, if later) for which a claimant must perfect an incomplete request for external review.
For plan administrators:
- Notice of COBRA Election. The 14-day deadline (44 days when the employer is the plan administrator) for a plan administrator to provide a COBRA election notice to qualified beneficiaries.