The Secretary of Health and Human Services has renewed the public health emergency determination due to the COVID-19 pandemic. The determination, which became effective on October 13, 2022, lasts 90 days, to January 11, 2023.
Effect of the Public Health Emergency Declaration
Vaccinations. The COVID-19 vaccine must be covered without cost sharing, as a “preventive service,” whether delivered in-network or out-of-network during the public health emergency. As a reminder, the COVID vaccine is preventive as defined by the ACA and will be covered as such at minimum in-network, even when the public health emergency expires.
COVID-19 tests ordered by a health care provider / by prescription. When medically indicated, an unlimited number of COVID-19 tests must be covered at no cost to participants, whether delivered in-network or out-of-network.
COVID-19 tests without a prescription / health care order. Beginning January 15, 2022, and through the duration of the public health emergency, plans must provide at least eight (8) OTC COVID-19 tests per individual, per 30-day period (or per calendar month). Plans cannot limit the number of OTC tests to a smaller number over a shorter period, e.g. four (4) tests per 15-day period. This applies only to OTC tests without a healthcare provider order or prescription. Plans can provide coverage either through a reimbursement model or direct coverage. For limits and safe harbor information, see our At Issue FAQs
Public Health Emergency (defined)
Pursuant to the Public Health Service Act, the Secretary of Health and Human Services determines whether a public health emergency exists. The COVID-19 pandemic was first determined to be a public health emergency on January 31, 2020. The Secretary’s determination lasts for a period of 90 days. The determination can be renewed as necessary and has been renewed continuously ever since.
A public health emergency determination is different from a National Emergency declaration. The President issues a Declaration of National Emergency. The COVID-19 outbreak was initially declared a National Emergency on March 13, 2020. The National Emergency lasts for one year and was renewed most recently in February 2022.
Outbreak Period Continues
In May 2020, the tri-agencies (DOL, HHS, Treasury) under their authority, allowed for certain employee benefit actions to be suspended for up to one year from the original action deadline, due to the pandemic. These delays are available during the period of time known as the “outbreak period.” The outbreak period was first announced in May 2020, retroactive to March 1, 2020, and continues until 60 days following the end of the national emergency.
Examples of employee benefit actions that can be suspended for one year include COBRA election and premium payment period, HIPAA special enrollment, claims period and external review periods, among others.
The delay period is unique to each individual and ends at the earlier of (1) one year from the occurrence of the need, or (2) 60 days after the end of the national emergency period. Plan administrators/sponsors should provide explanatory notices to impacted individuals. If and when the national emergency ends, it will also be important for plan administrators/sponsors to communicate clearly about the return to pre-emergency obligations.
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 information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations. This information is provided as general guidance and may be affected by changes in law or regulation. This information is not intended to replace or substitute for accounting or other professional advice. You must consult your own attorney or tax advisor for assistance in specific situations. This information is provided as-is, with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.