By: HUB’s EB Compliance Team
In response to the COVID-19 pandemic, the President, Congress and federal agencies began producing rules aimed at protecting Americans from the disease, mitigating potential financial loss and maintaining access to healthcare. Many of these protections will continue into the foreseeable future, while a few are going away on or before 2022. Below is a series of high-level summaries of what is staying and what is going away. Click on the applicable links for additional detail.
What Will Remain in Effect for 2022
- Coverage of COVID-19 Vaccines and Preventative Services
As noted here, health plans, including non-grandfathered plans, must cover, without cost sharing, a qualifying coronavirus preventive care services (mostly vaccines at this point), regardless of whether such service is delivered by an in-network or out-of-network provider.
- Vaccination Status Wellness Incentives/Surcharges
Hub also reported here, that the Departments permit health plans to impose vaccine premium incentives/surcharges on plan participants in accordance with the HIPAA and Affordable Care Act wellness program rules. The Departments applicable guidance confirms that COVID-19 vaccination incentives/surcharges are considered an activity-based, health-contingent wellness program.
Note: Prohibiting an employee from enrolling in a group health plan due to their unvaccinated status is impermissible under the wellness rules.
- HIPAA Privacy FAQs on Covid-19 Vaccinations
As discussed here previously, HHS released FAQs on the applicability of HIPAA Privacy Regulations and COVID-19 to the vaccination status of an employee. The short summary is that HIPAA Privacy Rules do not prohibit an employer, school, business, venue or other entity from inquiring about an individual’s vaccination status.
- “Outbreak period” extension for COBRA elections, HIPAA special enrollment rights, and claims procedures
As HUB initially wrote about here, the U.S. Departments of Labor and Treasury/IRS created a COVID-19 extensions for COBRA elections, HIPAA special enrollment right elections, or the deadline for filing health claims or appeals. The relief fundamentally provides a “pause” for counting the days for purposes of certain deadlines. The pause (called the “Outbreak Period”) runs on an event-by-event basis, meaning each COBRA election, payment deadline, special enrollment right, or claims deadline has its own Outbreak Period (although the IRS later clarified that the initial COBRA election and initial payment deadlines generally run at the same time). This means, for each event, the Outbreak Period will end on the earlier of:
- One year after it starts for that event; or
- 60 days after the national emergency declared for the COVID-19 pandemic ends.
For context, the national emergency is still ongoing.
- COVID-related PPE treated as a medical expense for HSA/FSA purposes
In Announcement 2021-7, the IRS confirmed that personal protective equipment (“PPE”), such as masks, hand sanitizer, and sanitizing wipes, that were primarily purchased to prevent the spread of COVID-19 will be considered “medical care” for tax purposes under Section 213(d) of the tax code. As Hub confirmed here, the Announcement also permits PPE reimbursement from a health flexible spending arrangements (“FSAs”), health reimbursement arrangements (“HRAs”), and health savings accounts (“HSAs”), if their documentation allows it. If not, an amendment to allow it must be adopted by the earlier of December 31, 2022 or the end of the calendar year after the plan year for which it is effective.
- Coverage of COVID testing without cost sharing
Initially, under the CARES Act, plans were generally required to cover COVID tests at no cost to the enrollees. The Departments expanded and clarified various CARES Act rules regarding coverage of COVID-19 testing in an FAQ. As Hub reported here, the new FAQs provide the following clarifications of these requirements:
- Anyone covered by the plan can get the test and the plan is required to pay for it (except see the next bullet).
- However, plans are not required to cover testing for workplace safety, public health surveillance, or employment purposes, such as “return to office” testing.
- Plans are required to cover tests provided through state- or locality-administered testing sites.
- Point-of-care tests (i.e., the rapid tests) are also required to be covered.
- Plans must also cover items and services that relate to the furnishing of the test or result in the test being requested.
How a plan should reimburse out-of-network providers that fail to disclose a posted website “cash price” (as they are legally required to do) represents the big elephant in the room. Plans can report non-compliant providers by emailing COVID19CashPrice@cms.hhs.gov (the FAQs don’t say this, but it probably would help to include a link to the non-compliant website).
More recently, the Biden administration announced that it will require employers to cover the cost of over-the-counter at-home COVID tests beginning sometime in January 2022 (currently targeting January 15). However, it is expected that covering the cost of workplace screening would remain consistent with current guidance.
COVID-19 Relief GOING AWAY OR EXPIRING
- Telehealth - First-dollar telehealth coverage for high-deductible health plans
The CARES Act temporarily allowed high-deductible health plans to cover telehealth and other remote care services on a first dollar basis (that is, before reaching the deductible). However, as Hub reported here, this relief is ending and will not be available to plan years that begin on January 1, 2022 or later.
Some federal legislators have introduced legislation to expand or extend access to telehealth and other remote care services beyond this deadline. However, unless and until such proposals become law, employers should plan to start charging for telehealth services again with the 2022 plan year.
- Unlimited 12-month FSA carryover or grace period (the last year of unlimited carryovers is from 2021 into 2022; regular carryovers or grace periods are still allowed)
On February 18, 2021, the IRS released Notice 2021-15 to clarify flexible spending account (“FSA”) relief. The Notice adds that unused funds at the end of the 2020 plan year were able to be rolled over into the 2021 plan year and, if they remain unused by the end of 2021, into the 2022 plan year as well. Employers may adopt some, all, or none of the options in the notice as Hub detailed here. They may also limit the groups of employees to which these options are available (subject to applicable nondiscrimination requirements). This flexibility is only available through the end of the 2022 plan year. This means the regular carryover and grace period rules restart for plan years ending in or after 2022 (i.e., for carryovers/grace periods going into the 2023 plan year).
- ARPA COBRA subsidies
The American Rescue Plan Act provided COBRA premium subsidies to potential Assistance Eligible Individuals, who were involuntarily terminated after November 2019, for the period of April 1-September 30, 2021. (see our prior articles here, here, here, and here). Employers that have not already done so, should focus their attention on claiming the tax credit for providing this coverage. This is accomplished by reporting the COBRA premium assistance provided to qualifying individuals on the quarterly employment tax return (IRS Form 941).
Takeaways and Next Steps
Employers should confirm that their plans are prepared to reflect the expiration of the relief that is going away. Similarly, they should confirm their plans continue to reflect the provisions that will remain in effect.
Finally, employers should keep an eye out going forward. As long as the pandemic continues, additional relief and changes are likely to keep employers on their toes for the foreseeable future.
If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.
NOTICE OF DISCLAIMER
Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only, and is not intended to constitute legal or tax advice as to an organization’s or individual's specific circumstances. It is based on Hub International's understanding of the law as it exists on the date of this publication. Subsequent developments may result in this information becoming outdated or incorrect and Hub International does not have an obligation to update this information. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your or your organization’s particular needs.