FAQs Address Coverage of COVID-19 Tests and Vaccines After End of Public Health Emergency

The DOL, HHS, and IRS have jointly issued FAQs addressing how group health plans and insurers will be impacted by the end of the COVID-19 national emergency (NE) and public health emergency (PHE). The Biden administration has announced that the NE and PHE will end on May 11, 2023 (see our Checkpoint article), although Congress recently voted to end the NE sooner. Here are highlights of the FAQs addressing the end of the PHE (see our separate Checkpoint article for FAQs addressing the end of the NE):

• Diagnostic Testing. Coverage requirements for COVID-19 diagnostic testing will not apply to items or services furnished after the end of the PHE. Over-the-counter tests are considered “furnished” on the date of purchase; for testing services, plans should look to the earliest date on which a service was rendered to determine whether the service was furnished during the PHE. For example, if a health provider collects a specimen to perform COVID-19 testing on the last day of the PHE, but the laboratory analysis occurs on a later date, both the collection and the analysis should be treated as furnished during the PHE. Plans that continue to cover diagnostic testing (including over-the-counter tests) after the PHE may choose to impose cost-sharing, prior authorization, or other medical management requirements. Plans will no longer be required to reimburse out-of-network testing providers the cash price listed on their website (see our Checkpoint article); likewise, providers will not be required to post their cash prices (though they are encouraged to do so for at least 90 days beyond the PHE to enable claims processing for tests furnished prior to the PHE’s end).
• Participant Notification. Plans are encouraged to notify participants and beneficiaries of any changes to the terms of coverage for the diagnosis or treatment of COVID-19 after the end of the PHE. In general, material modifications that would affect the content of the summary of benefits and coverage (SBC) and do not occur in connection with a renewal of coverage must be disclosed no later than 60 days prior to the modification’s effective date. However, plans that increased benefits or reduced cost-sharing for the diagnosis or treatment of COVID-19 or for telehealth or remote care services and revoke these changes upon expiration of the PHE will be deemed to have satisfied their obligation to provide advance notice of the material modification if they previously notified participants of the general duration of the increased benefits (such as, that they applied only during the PHE), or notify participants reasonably in advance of the reversal (see our Checkpoint article). The FAQs clarify that previous notices satisfy the advance notice requirement only if provided during the current plan year. [EBIA Comment: Note also that ERISA requires that an SMM be furnished no later than 60 days after adoption of a material reduction in a group health plan’s covered services or benefits.]
• Preventive Services and Vaccines. Non-grandfathered plans must continue to cover, without cost-sharing, qualifying coronavirus preventive services, including COVID-19 vaccines (see our Checkpoint article). The coverage must be provided within 15 business days after a recommendation is made by the USPSTF or ACIP. After the PHE ends, plans are not required to cover vaccines from an out-of-network provider if the plan has a network of providers and may impose cost-sharing if such coverage is provided. If a plan has no provider in its network who can provide a qualifying coronavirus preventive service, the plan must cover the service out-of-network without cost-sharing. [EBIA Comment: A court has recently vacated all agency actions implementing or enforcing USPSTF-recommended preventive care coverage requirements (see our Checkpoint article).]
• Coverage Under HDHPs. An individual covered by an HDHP that provides items and services related to COVID-19 testing and treatment prior to satisfaction of the minimum deductible (see our Checkpoint article) may continue to contribute to an HSA until further guidance is issued. Any modification to previous guidance will not require HDHPs to make changes in the middle of a plan year.

EBIA Comment: As the DOL observes in a related blog post, “we have come a long way from the time of businesses being closed and mandatory quarantine periods.” Nevertheless, challenges remain for plan sponsors and their advisors, even with the end of the NE and PHE in sight. For more information, see EBIA’s Group Health Plan Mandates manual at Section XVI.C (“COVID-19: Mandated Coverage of Diagnostic and Preventive Services”); EBIA’s Health Care Reform manual at Sections XII.C (“Coverage of Preventive Health Services”) and XVI.H (“Updating the SBC: Notice of Material Modifications”); EBIA’s Consumer-Driven Health Care manual at Section X.H (“HDHP Coverage: COVID-19 Testing and Treatment”); and EBIA’s Self-Insured Health Plans manual at Sections XI.E.5 (“Telehealth”) and XXVIII.C (“Summary of Benefits and Coverage (SBC)”).

Contributing Editors: EBIA Staff.