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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

New guidance was passed on April 10, 2023, by Congress and President Joe Biden. Please watch <a href="https://youtu.be/yXOEGNsOLrI" target="_blank" rel="noreferrer noopener">this episode</a> of the Law Shanty for updated information on the national emergencies.

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With President Joseph Biden’s administration having announced its intent to end the presidential COVID-19 National Emergency on May 11, 2023, and with the COVID-19 Public Health Emergency ("Public Health Emergency") set to expire on the same day, the government has prepared <a href="https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-Part-58.pdf" target="_blank" rel="noreferrer noopener">“FAQs”</a> to provide guidance about the end of the COVID-19 national emergencies.

Since March 1, 2020, certain time periods and dates for HIPAA special enrollment, COBRA continuation coverage, and internal claims and appeals and external review were disregarded in response to the presidential COVID-19 National Emergency (“Outbreak Period”). The Outbreak Period is currently set to expire on July 10, 2023 — 60 days after the May 11 ending date for the presidential COVID-19 National Emergency. The FAQs provide many examples of how to calculate time periods and deadlines for certain events once the Outbreak Period ends, such as the following:

Individual A works for Employer X and participates in Employer X’s group health plan. Individual A experiences a qualifying event for COBRA purposes and loses coverage on April 1, 2023. Individual A is eligible to elect COBRA coverage under Employer X’s plan and is provided a COBRA election notice on May 1, 2023. The last day of Individual A’s COBRA election period is 60 days after July 10, 2023 (the end of the Outbreak Period), which is September 8, 2023.

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If Individual A’s qualifying event occurred instead on May 12, 2023, after the end of the presidential COVID-19 National Emergency but during the Outbreak Period, the extensions under the emergency relief still apply. The last day of Individual A’s COBRA election period is 60 days after July 10, 2023 (the end of the Outbreak Period), which is September 8, 2023.

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Individual B participates in Employer Y’s group health plan. Individual B has a qualifying event and receives a COBRA election notice on October 1, 2022. Individual B elects COBRA continuation coverage on October 15, 2022, retroactive to October 1, 2022. Individual B has until 45 days after July 10, 2023 (the end of the Outbreak Period), which is August 24, 2023, to make the initial COBRA premium payment. The initial COBRA premium payment would include the monthly premium payments for October 2022 through July 2023.

The premium payment for August 2023 must be paid by August 30, 2023 (the last day of the 30-day grace period for the August 2023 premium payment).

Subsequent monthly COBRA premium payments would be due the first of each month, subject to a 30-day grace period.

Special Enrollment Period:

Individual C works for Employer Z. Individual C is eligible for Employer Z’s group health plan, but previously declined participation. On April 1, 2023, Individual C gave birth and would like to enroll herself and the child in Employer Z’s plan. Employer Z’s plan requires employees to provide notice of a birth within 30 days. Individual C and her child qualify for special enrollment in Employer Z’s plan as early as the date of the child’s birth, April 1, 2023. Individual C may exercise her special enrollment rights for herself and her child until 30 days after July 10, 2023 (the end of the Outbreak Period), which is August 9, 2023, as long as she pays the premiums for the period of coverage after the birth.

If Individual C instead gave birth on May 12, 2023, the Outbreak Period extensions would still apply because she became eligible for a special enrollment after the end of the presidential COVID-19 National Emergency, but during the Outbreak Period. Individual C may exercise her special enrollment right for herself and her child until 30 days after July 10, 2023 (the end of the Outbreak Period), which is August 9, 2023, as long as she pays the premiums for the period of coverage after the birth.

Loss of Medicaid Eligibility – Special Enrollment Event

Since the beginning of the Public Health Emergency in 2020, state Medicaid agencies generally have not terminated the enrollment of any Medicaid beneficiary. As agencies resume regular eligibility and enrollment practices, many people may find that they are no longer eligible for Medicaid and will need to transfer to other health coverage, such as their employer’s health plan. Loss of Medicaid eligibility has always been a HIPAA special enrollment event, and the FAQs reiterate that group health plans have an obligation to allow a special enrollment period for these individuals.

COVID-19 Cost-Sharing Requirements

Currently, group health plans are required to provide benefits for certain items and services related to diagnosing and treating COVID-19, without imposing any cost-sharing requirements (including deductibles, copayments and coinsurance), prior authorization or other medical management requirements.

The FAQs state that the above requirements will expire at the end of the Public Health Emergency. However, plans must provide notice to participants if the terms of coverage for the diagnosis or treatment of COVID-19 changes.

Coverage of COVID-19 Preventive Services/Vaccines

Currently, group health plans are required to cover any qualifying COVID-19 preventative service — such as vaccines — without cost-sharing requirements. These statutory provisions will continue to apply after the end of the Public Health Emergency, and group health plans must continue to cover, without cost sharing, qualifying coronavirus preventive services, including the cost of all COVID-19 vaccines within the scope of the Emergency Use Authorization or the Biologics License Application for the particular vaccine, and the cost of their administration.

How Employers Should Prepare

Employers should have procedures in place to track deadlines and prepare notices and communications for the rapidly approaching deadlines. Additionally, employers should have a game plan for what services their health plans will continue to cover after the Public Health Emergency ends. If you need assistance determining deadlines or coverage requirements, preparing employee communications, or changing the terms of your plan’s coverage, please contact <a href="/people/stephanie-h-grant/">Stephanie Grant</a>, <a href="/people/brandon-p-cross/" target="_blank" rel="noreferrer noopener">Bran Cross</a> or another member of Warner’s <a href="/practices/employee-benefits/" target="_blank" rel="noreferrer noopener">Employee Benefits Practice Group</a>.

Associate

Brandon P. “Bran” Cross

Senior Counsel

Stephanie H. Grant

Employee Benefits

Labor and Employment

Regulatory and Compliance

Benefit Plan Guidance for the End of the Public Health Emergency  and “Outbreak Period”

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Benefit Plan Guidance for the End of the Public Health Emergency and “Outbreak Period”

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