What Employers Should Know About the End of the Public Health Emergency
The COVID-related public health emergency (PHE) will end on May 11. This means employer plans will have some decisions to make about how they cover COVID-related tests and vaccines.
Guidance continues to roll out, but it’s likely that plans will be required to cover COVID-19 vaccines at no cost to enrollees even after the public health emergency expires under the preventive care requirements of the Affordable Care Act. However, plans should be able to limit coverage to in-network providers and pharmacies.
Testing is another story. Upon expiration of the PHE and absent any future guidance to the contrary, plans may choose to discontinue coverage of COVID testing, or transition to another coverage design including but not limited to 1) treating COVID tests just as you would other lab tests, 2) imposing cost-sharing, or 3) covering only in-network. A 60-day notice of any plan changes is required, and employers will want to pay close attention to any guidance that ends the current flexibilities in place that allow COVID testing to be covered at no cost before deductible is met in Health Savings Account (HSA) eligible plans.
The end of the PHE also sparks the end of continuous eligibility under Medicaid which has allowed anyone that has qualified for Medicaid or BadgerCare Plus (BC+) over the past three years to continue their coverage without going through a renewal. As of May 11, Wisconsin will begin the 14-month-long process of systematically renewing everyone who is currently on Medicaid or BC+. That means thousands of Wisconsinites will be transitioning their coverage starting in July of 2023 and extending through the summer of 2024. If you have employees on Medicaid or BC+ who lose their coverage during this process, they will be eligible for a Special Enrollment Period if they qualify for employer-sponsored health benefits. Employers may wish to plan for added enrollment during this period.
It would likely be beneficial for eligible employees to keep Medicaid coverage for as long as possible, until they are informed they are ineligible, which could occur at any time during the transition period depending on their assigned renewal date. Employees will likely have 30 days to enroll in employer coverage, although they currently have an extended window due to a special enrollment provision that is in place through July 10. Stay tuned for additional guidance on this matter.
There are other provisions that also change with the end of the PHE. The organization we partner with on the federal level regarding health policy, the American Benefits Council, has worked with Groom Law Group to put together an informative checklist on the end of the PHE for health plans.
Guidance on Qualified Medical Expenses for Health, Nutrition and Wellness Issued
The IRS has released a list of Frequently Asked Questions answering questions impacting account-based plans such as HSAs, FSAs, HRAs and MSAs. The guidance covers services such as dental and eye exams, nutrition and mental health counseling, weight loss programs including food purchased for weight loss and gym memberships among others.
Guidance on Gag Clause Attestations Issued
The Consolidated Appropriations Act of 2021 prohibits employer plans from entering contracts with healthcare providers, TPAs or other service providers that would restrict the employer from providing, accessing, or sharing certain information about provider price and quality and deidentified claims. Employers must attest they are in compliance with this provision by Dec. 31, 2023, and every year thereafter.
The Department of Labor and CMS have created a website to facilitate attestations. They have also issued a list of Frequently Asked Questions and instructions to aid employers in complying with this requirement.
IRS Rev. Proc. 2023-17
The IRS has released their annual guidance describing the indexed amounts used to calculate “employer shared responsibility payments” otherwise known as the employer penalty for not providing affordable coverage to full-time employees. The amounts are increased for the 2024 plan year. Under this guidance, the 4980H(a) penalty amount is $2,970 per employee, which applies if an employer does not offer minimum essential coverage to 95% of its full-time workforce, while the Section 4980H(b) penalty amount is $4,460 per employee that accesses ACA tax credits.
New No Surprises Act Guidance Issued
Federal agencies have released new guidance related to the No Surprises Act for disputing parties and Independent Dispute Resolution Entities (IDREs) as a result of the recent court decision that found that the No Surprises Act may not place more emphasis on the Qualified Payment Amount (QPA) over other factors to settle payment disputes. The guidance may be found here.