The Internal Revenue Service (IRS) has issued Notice 2023-37, providing guidance on several issues related to health plans’ coverage of treatment and services. The guidance addresses the transition from pandemic to post-pandemic policies as well as providing clarification of the impact of recent litigation on health plans.

• HDHP coverage of COVID-19 testing and treatment:
  • High-deductible health plans (HDHPs) may continue to offer pre-deductible coverage of COVID-19 testing and treatment for any plan year ending on or before December 31, 2024.
  • For any HDHP with a plan year ending January 1, 2025 or later (i.e., plan years beginning on or after January 2, 2024) the deductible must be applied to COVID-19 testing and treatment.
  • Effective June 23, 2023 (the date of publication of Notice 2023-37), the HDHP preventive care safe harbor does not include COVID-19 screening. However, this will only impact plan years beginning January 2, 2024 or later, since pre-deductible coverage is permissible .
• HDHP preventive care safe harbor:
  • A case currently being litigated in federal court (Braidwood v. Becerra) may impact which items and services are covered by the preventive care mandate under the Affordable Care Act. Specifically, depending on the outcome of the case, items and services rated “A” or “B” by the United States Preventive Services Task Force (USPSTF) on or after March 23, 2010 may no longer be covered by the preventive care mandate.
  • Notice 2023-37 clarifies that, irrespective of the outcome of the Braidwood v. Becerra case, items and services with an “A” or “B” rating from the USPSTF will continue to be treated as preventive care for purposes of the HDHP safe harbor. HDHPs may cover these items and services before the deductible has been met.