Spring Cleaning: Preparing for the COVID Emergency’s End

On January 30, 2023, President Biden announced that the longstanding COVID-19 national emergency and public health emergency declarations would be extended through May 11, 2023. After this final extension, both Declarations are expected to expire.

For sponsors of employee benefit plans, the end of the Declarations will impact many of the temporary design changes that have been implemented over the course of the COVID-19 pandemic. These requirements were either introduced through legislation (such as the CARES Act) or through stand-alone guidance (such as the Outbreak Period deadline relief). Since many of these requirements sunset along with the Declarations, plan sponsors now face the unwieldy task of unwinding these plan design features mid-year.

This alert highlights some of the key considerations for benefit plan sponsors to keep in mind when planning for the end of the Declarations.

Retain Flexibility

President Biden’s announcement made clear that the upcoming end of the Declarations is planned – not guaranteed. Accordingly, when making any plan design changes or participant communications, plan sponsors should keep in mind that the May 11, 2023, date is subject to change. As the last three years have illustrated, the COVID-19 landscape can change in a matter of days, so employers should leave themselves room to make last-minute adjustments in the event the Declarations do not sunset as planned.

Review All Plan Documents and Participant Communications

Over time, plan sponsors have added references to various COVID-19-related requirements to their plan documents and participant communications. For example, many employers added language to their COBRA notices to explain that the election and payment deadlines were temporarily suspended as a result of the Declarations. Likewise, there may be notices on benefit plan intranets or other plan-related websites explaining the availability of over-the-counter COVID-19 tests through the plan’s medical or prescription drug coverage.

In the coming months, plan sponsors should undertake to review their plan documents and participant-facing materials to identify the temporary design features that are linked to the Declarations and, where necessary, ensure that these provisions revert to the pre-COVID rules. In particular, some documents (such as the summary of benefits and coverage, or SBC) have specific timing rules for any content changes. Employers should be mindful of these deadlines when reviewing and revising these documents.

Coverage for the COVID-19 Vaccine

The CARES Act added new provisions to the Affordable Care Act’s “preventive services” to provide expanded access to the COVID-19 vaccine for many group health plan participants. In the meantime, the COVID-19 vaccine has received a formal recommendation from the Advisory Committee on Immunization Practices (ACIP), which means that it joins the ACA’s long list of preventive services – regardless of the fact that the Declarations are ending.  

Importantly, these ACIP recommendations apply to the current slate of COVID-19 vaccines and bivalent boosters only. As future vaccine methods are developed and approved in the future, plan sponsors should take note of the deadlines associated with integrating these new preventive services into their plan design.

Additionally, it may be a good time for employers to perform a holistic review of their COVID-19 vaccine strategy and carefully review any other programs that have been implemented to expand access to the COVID-19 vaccine. For example, some employers introduced standalone vaccine drives and wellness program incentives as part of their corporate goals for promoting access to the vaccine. Programs such as these may be subject to significant regulation under federal benefits law and should be carefully reviewed to ensure that they remain compliant going forward and are driving the intended results.

Expiration of Extended Deadlines

As noted above, a number of important health plan deadlines were suspended for up to one year during the so-called Outbreak Period, which is defined as the duration of the COVID-19 national emergency, plus 60 days. If the national emergency ends on May 11, 2023, the Outbreak Period will end July 10, 2023.

When the Outbreak Period finally comes to a complete end, the extension of affected deadlines will also end. The ordinary periods will once again apply for filing claims and appeals under ERISA plans, submitting mid-year elections arising from special enrollment events, and making COBRA elections and payments.

The resumption of ordinary rules presents particular issues for COBRA payment deadlines that remain suspended up to the time the Outbreak Period terminates. Given prior guidance on these payments, it seems unlikely that plans will be permitted to demand immediate payment of large arrearages that have accumulated over time, but they may need to consider how to integrate payment for past periods with ongoing monthly premiums as they come due. We may look for future guidance to address this issue. 

Conclusion

Plan sponsors should use the coming months to work with their advisors and administrators to ensure that their plan design, documents, and communications are appropriately reviewed and, if necessary, revised to account for the planned sunset of the Declarations.

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.