🗓️ February 2023 Updates
Keeping HR pros up to date with important compliance updates and human resource articles.
How the End of the COVID-19 Emergency Periods Will Impact Health Plans
On January 30th, President Biden announced his intention to end both the Public Health Emergency (PHE) and the COVID-19 National Emergency on May 11, 2023. The COVID-19 outbreak period will end 60 days after the national emergency, July 10, 2023. When the PHE ends, the following health plan coverage rules related to the COVID-19 pandemic will no longer apply:
- COVID-19 Diagnostic Testing Without Cost Sharing:
During the PHE, health plans and health insurance issuers must cover COVID-19 tests and related services without imposing any cost share or prior authorization, or other medical management requirements. As of Jan. 15, 2022, this coverage requirement extends to at-home COVID-19 diagnostic tests. Health plans and issuers will no longer be required to provide this first-dollar coverage when the PHE ends.
- COVID-19 Diagnostic Testing Without Cost Sharing:
Non-grandfathered group health plans and health insurance issuers must cover coronavirus preventive services, including recommended COVID-19 immunizations, without cost-sharing requirements. During the PHE, covered services may be provided by in-network or out-of-network providers. Once the PHE ends, health plans and issuers must continue to cover recommended COVID-19 immunizations without cost-sharing but can limit this coverage to in-network providers.
- Standalone Telehealth Benefits:
For plan years beginning during the PHE, a large employer (more than 50 employees) may offer standalone telehealth benefits and other remote care services to individuals who are not eligible for coverage under any other group health plan offered by the employer without violating the ACA’s market reforms. These types of standalone arrangements will not be permitted after the PHE ends.
Congress Extends Telehealth Relief for HDHPs
The Consolidated Appropriations Act 2023 extends the ability of high deductible health plans (HDHPs) to provide benefits for telehealth or other remote care services before plan deductibles have been met without jeopardizing health savings account (HSA) eligibility. This extension applies for plan years beginning after Dec. 31, 2022, and before Jan. 1, 2025.
Due to this extension, HDHPs may choose to waive the deductible for any telehealth services for plan years beginning in 2023 and 2024 without causing participants to lose HSA eligibility. This provision is optional; HDHPs can continue to choose to apply any telehealth services toward the deductible. Note that there is a gap for non-calendar-year plans from Jan. 1, 2023 (when the spending bill’s extension expired) to the start of the 2023 plan year, during which this temporary relief for telehealth services does not apply.
Reminder – Upcoming ACA Reporting Deadlines
Employers subject to the ACA reporting under Sections 6055 and 6056 should prepare to comply with upcoming reporting deadlines. For the 2022 calendar year, covered employers must:
- Furnish statements to individuals by March 2, 2023; and
- File returns with the IRS by Feb. 28, 2023 (or March 31, 2023, if filing electronically)
Penalties may apply if employers are subject to ACA reporting and fail to file returns and furnish statements by the applicable deadlines. The following employers are subject to ACA reporting under Sections 6055 and 6056:
- Employers with self-insured health plans (Section 6055 reporting)
- Applicable large employers with either fully insured or self-insured health plans (Section 6056 reporting)
In addition, the IRS has finalized an alternative method for furnishing statements to individuals under Section 6055. Employers using this method must post a notice on their websites stating that individuals may receive a copy of their statement upon request. For 2022 statements, this notice must be posted by March 2, 2023, and generally remain posted through Oct. 17, 2023.
The Earned Sick Time Act & Increase to Minimum Wage are Gone (at least for now!)
On January 26, 2023, the Michigan Court of Appeals issued an opinion that reversed an earlier decision of the Michigan Court of Claims which had reinstated the original Improved Workforce Opportunity Act (IWOWA) and Earned Sick Time Act (ESTA) adopted in 2018. The Court of Appeals disagreed with the ruling from the Court of Claims and held that the prior amendments to those laws are constitutionally valid and gave its decision immediate effect.
What this means for employers is that the Paid Medical Leave Act (PMLA) as it is called now and the IWOWA provisions in effect last year will remain in effect pending further action by the Michigan Supreme Court or the legislature. Good news – any plans to change your sick time policies can be put on hold! 😊
HIPAA Special Enrollment Requests to Increase Due to Loss of Medicaid Eligibility
Beginning April 1, 2023, states that maintained continuous Medicaid enrollment during the COVID-19 pandemic may start terminating coverage for individuals who are no longer eligible. Employers will likely see an increase in midyear enrollment requests as individuals lose eligibility for Medicaid coverage.
HIPAA allows eligible individuals to enroll in health plan coverage outside of normal enrollment periods. Employees and dependents who lose eligibility for Medicaid coverage have special enrollment rights under HIPAA. Most employers allow employees to change their pre-tax benefit elections when they experience a special enrollment event. The COVID-19 outbreak period ends on July 10, 2023, which means the normal 60-day deadline for requesting HIPAA special enrollment becomes applicable.
Employers should allow employees (and dependents) who lose Medicaid eligibility to enroll in their group health coverage as special enrollees, assuming they are eligible under the terms of the plan and timely request enrollment. Employers should note that HIPAA’s 60-day deadline for requesting special enrollment is extended during the COVID-19 outbreak period.
Prescription Drug Reporting
You may remember this topic in my previous newsletters. As a reminder, The No Surprises Act (NSA), enacted as part of the Consolidated Appropriations Act, 2021 (CAA), includes transparency provisions requiring group health plans to report information on prescription drugs and healthcare spending to the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (Departments). This requirement applies to group health plans and health insurance issuers in the individual and group markets but does not apply to account-based plans and excepted benefits.
This reporting process is referred to as the “prescription drug data collection” (or “RxDC report”). While the first RxDC report was due by Dec. 27, 2022 (covering data for 2020 and 2021), the Departments provided a submission grace period through Jan. 31, 2023, and will not consider a plan or issuer to be out of compliance if a good faith submission was made on or before that date.
The second report is due by June 1, 2023. Most employers will rely on their issuers, TPAs or PBMs, as applicable, to prepare and submit the RxDC reports. Employers should reach out to their issuers, TPAs or PBMs, as applicable, to confirm that they will submit the RxDC reports for their health plans. Employers should also update their written agreements with these third parties to reflect this reporting responsibility. Employers with self-funded plans should monitor their TPA’s or PBM’s compliance.