Plan Changes in Response to the End of the Public Health Emergency

Compliance, Employee Benefits

As the end of the COVID-19 Public Health Emergency (PHE) approaches on May 11, 2023, employers who sponsor employee health plans would be well-served to review recent guidance from the Departments of Labor, Health and Human Services, and the Treasury (the “Departments”). This guidance focuses on changes to the coverage requirements of certain items and services related to the diagnosis and treatment of COVID-19. In this FAQ, the Departments provided further information about plan sponsor’s responsibilities when making changes to their plan in response to the end of the PHE.

When the PHE expires on May 11, 2023, so too will the requirement that group health plans cover COVID-19 testing and COVID-19 vaccines from any provider without cost-sharing. Plans will now have the ability to set cost-sharing requirements for testing, though the Departments “encourage plans and issuers to continue covering benefits for COVID-19 diagnosis and treatment and for telehealth and remote care services after the end of the PHE.” COVID-19 vaccines from in-network providers must continue to be covered without cost-sharing, but plans will be free to impose cost-sharing requirements for vaccines from an out-of-network provider.

Participant Notice Requirements

Employers who make changes to their health plan(s) as result of the end of PHE need to determine if they must disclose these changes to their plan’s participants. Plan sponsors are required to notify plan participants and enrollees if they make a material modification to the plan that affects the content of the summary of benefits and coverage (SBC). This notification is supposed to be provide 60 days prior to the effective date of the change.

The Department’s guidance states that plan sponsors have met this notification requirement if the plan sponsor either:

  • Previously notified the participant, beneficiary, or enrollee that the general duration of the additional benefits coverage or reduced cost-sharing (such as, that the increased coverage applies only during the PHE), or
  • Notifies the participant, beneficiary, or enrollee of the general duration of the additional benefits coverage or reduced cost-sharing within a reasonable timeframe in advance of the reversal of the changes.

Please note that a notification provided in a previous plan year does not satisfy the obligation to provide advance notice of the change in the current plan year.

Key Takeaway:

Plan sponsors should check with their insurance carrier or third party administer (TPA) to determine what, if any, plan changes are being made in response to the end of the PHE. If any of these changes affect the content of the SBC, the changes must be disclosed in advance to participants and enrollees. Plan sponsors should review past communication to participants and enrollees to determine if they have already provided the required notice to participants.

The information provided is a summary of laws and regulations relating to employee benefit plan compliance. This information should not be construed as legal advice. In all cases, employers should consult with their own legal counsel.

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