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Coverage Requirements for COVID-related Services Post-Public Health Emergency

by | Jun 1, 2023 |

The COVID-19 national emergency (“NE”) and public health emergency (“PHE”) officially ended on April 10 and May 11, 2023, respectively. The end of the emergencies provides group health plan sponsors with the ability to modify certain COVID-19-related benefits mandated over the past several years through NE and PHE-related legislation and regulations.

Background. The Families First Coronavirus Response Act (“FFCRA”) and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) required group health plan sponsors and administrators to implement new mandates and incorporate plan operational flexibility in the coverage and provision of COVID testing and vaccines.

For example, during the PHE, group health plans were required to cover COVID-19 testing without cost-sharing, prior authorization or other medical management restrictions. Additionally, non-grandfathered group health plans were required to provide coverage for COVID-19 vaccines at no cost and without medical management restrictions, whether received from an in-network or an out-of-network provider.

The IRS, DOL, and HHS (collectively the “Agencies”) issued regulations and guidance that specified the extent of the required coverage. The Agencies have also provided guidance on these coverage requirements following the end of the PHE.

Post-PHE COVID-related coverage requirements.The following is a summary of how several mandated COVID-related health plan benefits have been impacted by the end of the PHE.

COVID-19 Tests. The coverage requirements for COVID-19 testing no longer apply to items or services furnished after the end of the PHE. The Agencies have explained that over-the-counter tests are considered “furnished” on the date of purchase. For testing by a health care provider, the earliest date on which a service was rendered will determine whether the service was furnished during the PHE. For example, if a provider collects a specimen to perform COVID-19 testing on the last day of the PHE, but the analysis of the specimen occurs on a later date, both services are viewed as being furnished during the PHE.

The Agencies have encouraged group health plan sponsors to continue providing coverage for COVID-19 testing after the PHE at no cost to participants. However, group health plans can now: (i) enforce network restrictions; (ii) impose cost-sharing; (iii) apply medical management techniques (e.g., prior authorization); and (iv) stop covering COVID-19 tests altogether. Plan sponsors may take any of these actions immediately or at a future date (e.g., the end of the plan year).

NOTE: Expenses for COVID-19 tests will generally continue to be eligible as medical expense reimbursements under health flexible spending accounts, health reimbursement accounts, and health savings accounts.

COVID-19 Preventive Services (Vaccines). Group health plans must continue to cover, without cost, COVID-19 vaccines, but only when furnished by an in-network provider. If a plan provides coverage for out-of-network preventive services, it may impose cost-sharing if there is an in-network provider that can perform the service.

NOTE: This coverage requirement will remain effective so long as COVID-19 continues to be a mandated “preventive service” under the ACA.

Plan Documents and Participant Notices. Before implementing any of the coverage changes regarding COVID-related services, plan sponsors need to review their formal plan documents to determine if any amendments are required.

The Agencies have encouraged plan sponsors to notify participants and beneficiaries about any changes to the terms of a plan’s coverage for COVID-related services. Accordingly, plan administrators should review their plans’ summaries of benefits and coverage (“SBC”), summary plan descriptions, and summaries of material modifications (“SMM”) to determine if any updated notices should be provided to participants about these changes.

As a reminder, ERISA requires that an SMM be furnished no later than 60 days after the adoption of a material reduction in a plan’s covered services or benefits. In addition, material modifications affecting the content of a plan’s SBC must be disclosed to participants and beneficiaries no later than 60 days before the modification’s effective date.

NOTE: Plans that increased benefits or reduced cost-sharing for COVID-related services and end these changes upon the expiration of the PHE will be deemed in compliance with the advance notice requirement if they previously provided notification (during the current plan year) of the general duration of the increased benefits or if they provide notification to participants and beneficiaries within a reasonable time in advance of the reversal.

For more information about the COVID-related coverage changes, please see: “FAQs about Families First Coronavirus Response Act, Coronavirus Aid, Relief, and Economic Security Act, and Health Insurance Portability and Accountability Act Implementation Part 58”, available at: