The Families First Coronavirus Response Act (“FFCRA”, H. R. 6201, Public Law 116-127) enacted on March 18, 2020 and the Coronavirus Aid, Relief, and Economic Security Act enacted on March 27, 2020 (“CARES Act”, H. R. 748, Public Law 116-136) address many issues. Specific to employee benefits, these laws provide for mandated health coverage for coronavirus testing and related services, emergency paid sick leave, and emergency family and medical leave, as well as tax credits for providing emergency leave and continuation of health coverage for employers impacted by the COVID-19 situation.
Following are some FAQs relating to COVID-19 Testing and Vaccines. Please refer to the CBIZ Benefits & Insurance Services’ Employer Compliance Handbook: COVID-19's Impact on Benefits and Employment for additional information.
Is the outbreak period ending soon?
Is it time to write the post-script on the outbreak period? As a reminder, last April regulations were issued suspending time frames for certain employee benefit actions for the duration of what is called the outbreak period. Examples of employee benefit actions that are impacted include COBRA election and premium payment period, HIPAA special enrollment, claims period and external review periods among others. For a more detailed summary of these rules, see At Issue supplement: Benefit Plan Regulatory Relief.
Note: the outbreak period is not directly imposed upon public sector entities such as state and local governments, although Health and Human Services indicated that they encourage state and local governments to follow the outbreak rules.
The outbreak period is the period that began March 1, 2020 and continues until 60 days following the end of the national emergency .In March of 2020, then President Trump declared a national emergency pursuant to the National Emergency Act and pursuant to the Stafford Act. As of this date, no end to this national emergency has been stated. Pursuant to ERISA Section 518 and IRC Section 7508, a national emergency can last only one year. Since this national emergency commenced on March 1, 2020, this would mean it would end February 28, 2021.Like most everything related to 2020 and the coronavirus situation, the duration of this national emergency is unprecedented. This is the first time a national emergency has come close to reaching the one year limit. What this means is a bit uncertain. Will the outbreak period have a hard stop on February 28, 2021?So far, the Department of Labor (DOL) and Treasury have not made any further ruling or comment on the duration of this national emergency. It is possible that there will be a pronouncement between now and February 28, 2021.
In the meantime, plan sponsors will want to begin to communicate with their plan providers to develop a strategy. One strategy might be to take the position that the outbreak period has a hard stop on February 28, 2021 and all election periods, premium payment periods, claim periods that were suspended will begin to run on March 1, 2021.If this is the position taken, it would be prudent to communicate this to impacted individuals. Another, and clearly less palatable, position that could be taken is that the one year period is unique to each impacted individual, meaning each impacted individual would have his or her own one year measurement period. It is hoped that the governing agencies will not take this position. It is also possible that the governing agencies could extend the outbreak period. If the governing agencies intend to issue guidance, hopefully it will be sooner than later.
- Distinguish public health emergency from the national emergency.
The Secretary of Health and Human Services declared a public health emergency in January of 2020.This public health emergency can extend for 90 days and is renewable. Ever since then, the 90-day public health emergency has been renewed, most recently in January, extending through April 20, 2021.
The public health emergency is distinct from and independent of the national emergency described above. Note: the public health emergency dictates that medically indicated coronavirus testing delivered both in- and out-of-network must be covered at no cost to the participant for the duration of the public health emergency. The CARES Act provides that the coronavirus vaccine must be covered as an Affordable Care Act (ACA) preventive service, meaning it must be covered in network. However, for the duration of the public health emergency, it must be covered as a preventive service both in and out-of-network.
As a reminder, at this point, two coronavirus vaccines, the Pfizer vaccine and the Moderna vaccine have been granted emergency use authorization and must be covered as an ACA preventive service. It is possible that additional vaccines will be granted emergency use authorization in the near future.
Stay tuned. If guidance is issued, we will share it here.