White House Announces End of COVID-19 Emergency Periods – How This Will Impact Health Plans

The Biden Administration has announced its plan to end the COVID-19 national emergency and public health emergency (PHE) on May 11, 2023. Employer-sponsored health plans have been required to comply with certain coverage requirements during the COVID-19 emergency periods, including the following:

• Health plans must cover COVID-19 diagnostic tests and related services without imposing any cost sharing (such as deductibles, copayments or coinsurance) during the PHE; and
• Non-grandfathered health plans must cover certain preventive services, including recommended COVID-19 vaccines and boosters, without cost sharing. During the PHE, this coverage mandate applies to COVID-19 immunizations provided by all providers, regardless of whether they are in-network or out-of-network.

In addition, during the COVID-19 outbreak period (which is tied to the national emergency), certain health plan deadlines are extended, including the deadlines to request special enrollment under HIPAA, elect COBRA continuation coverage and comply with the plan’s claims and appeals procedures. 

Employer Takeaway
When the PHE ends, health plans will no longer be required to cover COVID-19 diagnostic tests and related services without cost sharing. Health plans will still be required to cover recommended preventive services, including COVID-19 immunizations without cost sharing, but this coverage requirement will be limited to in-network providers. In addition, once the COVID-19 outbreak period ends, health plans can go back to their non-extended deadlines for purposes of HIPAA special enrollment, COBRA continuation coverage and claims and appeals procedures.

Medicare Part D: Disclosure Notice to CMS

Employers with health plans that provide prescription drug coverage to individuals who are eligible for Medicare Part D are subject to certain disclosure requirements. One of these requirements provides that plan sponsors must disclose to the Centers for Medicare and Medicaid Services (CMS) on an annual basis and at other select times whether the plan’s prescription drug coverage is creditable or non-creditable.

This disclosure is required regardless of whether the health plan’s coverage is primary or secondary to Medicare. Plan sponsors are required to use the online form on the CMS Creditable Coverage webpage to make this disclosure.

The plan sponsor must complete the online disclosure within 60 days after the beginning of the plan year. For calendar year health plans, the deadline for the annual online disclosure is March 1 (February 29 for leap years).

Disclosure to CMS
Group health plan sponsors are required to disclose to CMS whether their prescription drug coverage is creditable or non-creditable. This disclosure is required regardless of whether the health plan’s coverage is primary or secondary to Medicare. 

If an employer’s group health plan does not offer prescription drug benefits to any Medicare Part D eligible individuals as of the beginning of the plan year, the group health plan is not required to submit the online disclosure form to CMS for that plan year.

The disclosure must be made to CMS on an annual basis and whenever any change occurs that affects whether the coverage is creditable. More specifically, the Medicare Part D disclosure notice must be provided within the following time frames:

• Within 60 days after the beginning date of the plan year for which the entity is providing the disclosure to CMS;
• Within 30 days after the termination of a plan’s prescription drug coverage; and
• Within 30 days after any change in the plan’s creditable coverage status.

Employer Takeaway
Employers that are required to report to CMS should work with their advisors to determine whether their prescription drug coverage is creditable or non-creditable. 

For more information, employers should also visit the CMS Creditable Coverage webpage, which includes links to the online disclosure form and related instructions.

DOL Releases Audit Results of ERISA Enforcement During 2022

The U.S. Department of Labor (DOL) has released the results of its Employee Benefits Security Administration’s (EBSA) enforcement actions during fiscal year (FY) 2022.

Through its enforcement of the Employee Retirement Income Security Act (ERISA), the EBSA oversees approximately 2.5 million health plans, 747,000 retirement plans and 673,000 other welfare benefit plans. According to the audit, these plans cover 152 million workers, retirees and dependents.

Enforcement and Compliance Statistics
In FY 2022, EBSA recovered over $1.4 billion for employee benefit plans, participants and beneficiaries. Other key EBSA enforcement results include the following:

• EBSA closed 907 civil investigations. Of these, 66 percent resulted in monetary results for employee benefit plans or other corrective actions;
• EBSA referred 55 cases for civil litigation and closed 164 criminal investigations; and
• EBSA’s criminal investigations led to the indictment of 103 individuals—including plan officials, corporate officers and service providers—for offenses related to employee benefit plans.

The DOL audit fact sheet also includes statistics for the EBSA’s compliance assistance programs, the Voluntary Fiduciary Correction Program (VFCP) and the Delinquent Filer Voluntary Compliance Program (DFVCP). 

The VFCP allows plan officials who have identified specified ERISA violations to take corrective action to remedy the breaches and voluntarily report the violations to EBSA without becoming the subject of an enforcement action. In FY 2022, EBSA received 1,374 applications through the VFCP.

The DFVCP encourages plan administrators to bring their plans into compliance with ERISA’s filing requirements. EBSA received 22,444 annual reports through this program in FY 2022, and the EFAST2 Help Desk handled over 21,000 inquiries to help filers meet their reporting obligations.