The Departments of Labor, Health and Human Services, and the Treasury jointly released additional frequently asked questions (“FAQs”) regarding implementation of the health coverage provisions of the Families First Coronavirus Response Act (“FFCRA”); the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and other health coverage issues related to COVID-19. This is a second set of FAQs issued by the agencies to provide guidance on these FFCRA and CARES Act requirements. See our earlier article on the prior FAQ.
The FFCRA was enacted on March 18, 2020 and generally requires group health plans and health insurance issuers to provide benefits for certain items and services related to testing for the detection and diagnosis of COVID-19. This coverage must be provided without imposing any cost-sharing requirements (including deductibles, copayments, and coinsurance), prior authorization, or other medical management requirements.
The CARES Act was enacted on March 27, 2020 and amended the FFCRA to include a broader range of diagnostic items and services that plans and issuers must cover. The CARES Act also requires plans and insurers to reimburse any provider of COVID-19 diagnostic testing an amount that equals the negotiated rate or, if the plan or insurer does not have a negotiated rate with the provider, the cash price for such service that is listed by the provider on a public website. A plan or insurer, however, may negotiate a rate with the provider that is lower than the published cash price.
Summary of FAQ Guidance
Due to the urgent need to help facilitate the nation’s response to the public health emergency posed by COVID-19, the three departments deemed it necessary to adopt temporary policies to provide relief and to help individuals understand the law and benefit from it.
Application to Self-Funded Plans
Both the statutes and FAQs make clear that the requirements of the law with respect to covering certain items and services related to testing for the detection and diagnosis of COVID-19 apply to both fully insured and self-funded group health plans.
Types of Covered COVID-19 Tests
To assist plan and insurers determine which COVID-19 tests are required to be covered, the FAQs clarify that (i) all in vitro diagnostic tests for COVID-19 that have received an emergency use authorization (“EUA”) and (ii) all clinical laboratories and commercial manufacturers that have notified the Food and Drug Administration (“FDA”) that they have validated their own COVID-19 test are listed on the EUA page of the FDA website.
All plans and insurers must cover diagnostic tests for COVID-19 that are included on these FDA lists. A plan or insurer, however, is allowed to take reasonable steps to verify that a test that is offered by a provider meets the statutory criteria by, for example, requesting that a laboratory or commercial manufacturer provide documentation to demonstrate that it has requested or intends to request an EUA from the FDA.
Identifying the Attending Health Care Provider
An attending provider is an individual who is licensed or authorized under applicable law, acts within the scope of such license or authorization, and is responsible for providing care to the patient. The FAQs clarify that a health care provider need not be directly responsible for providing care to the patient to be considered an attending provider, as long as the provider makes an individualized clinical assessment to determine whether the test is medically appropriate for the individual in accordance with current accepted standards of medical practice.
- At-Home Testing: COVID-19 tests intended for at-home testing must be covered, provided such testing is determined by an attending health care provider to be medically appropriate for the individual. The test itself must also meet the statutory criteria described above.
- Blanket “Return to Work” Testing: Testing to screen for general workplace health and safety (such as employee “return to work” programs), general public health surveillance, or any other purpose that is not primarily intended for individualized diagnosis or treatment of COVID-19 is not required to be covered.
- Repetitive Testing: Group health plans and issuers are required to cover multiple diagnostic tests for COVID-19 tests for any one individual, provided that all the tests are diagnostic and medically appropriate for the individual, as determined by his or her attending health care provider.
- Ancillary Services and Fees: The law requires that plans and insurers cover all items, services, and fees that are furnished to an individual during in-person and telehealth health care provider office visits, urgent care center visits, and emergency room visits that result in an order for or administration of a covered diagnostic test. Coverage is required only to the extent that the items, services, and fees relate to the furnishing or administration of the test or to the evaluation of the individual for purposes of determining the need for that test.
Payments to Providers
- The CARES Act describes the amount a plan or insurer must reimburse a provider for COVID-19 testing. The statute does not address the reimbursement rate for any other items and services.
- The statute’s requirement that a provider be reimbursed in an amount that equals the cash price of a COVID-19 test is contingent upon the provider making public the cash price for the test. The law is silent with respect to the amount to be reimbursed for testing when the provider has not publicly disclosed the cash price for a test and the plan or issuer and the provider cannot agree upon a rate that the provider will accept as payment in full for the test. The Secretary of HHS may impose monetary penalties on any provider of COVID-19 diagnostic testing that does not publicly post the cash price for the diagnostic test on the provider’s website and has not completed a corrective action plan, in an amount not to exceed $300 per day that the violation is ongoing.
- The amount the plan or insurer reimburses the provider constitutes payment in full for the test, with no cost sharing to the individual or other balance due. Therefore, the statute generally prohibits balance billing a patient for COVID-19 testing.
- State laws governing reimbursements may apply if a plan or insurer that does not already have a negotiated rate with a provider seeks to negotiate a rate. For example, state laws that establish a dispute resolution process for insurers and providers to determine reimbursement rates would continue to apply in these states.
- For COVID-19 diagnostic tests that are out-of-network emergency services, the requirements of the CARES Act supersede the reimbursement rules of the PHS Act that are applicable to non-grandfathered plans, and the plan or insurer must still reimburse an out-of-network provider of COVID-19 testing an amount that equals the cash price for such service that is listed by the provider on a public website or a negotiated rate that is lower than the cash price.
- Notice: Once the COVID-19 public health emergency is no longer in effect, the government will consider a plan or insurer to have satisfied its obligation to provide advance notice of a material modification if the plan or insurer notifies the participant of the general duration of the additional benefits coverage or reduced cost sharing within a reasonable timeframe in advance of the reversal of the changes.
- Telehealth: In light of the critical need to minimize the risk of exposure to and community spread of COVID-19, for the duration of any plan year beginning before the end of the public health emergency related to COVID-19, limited relief is provided for a group health plan that solely provides benefits for telehealth or other remote care services from the group market reforms under the Affordable Care Act. This relief is limited to telehealth and other remote care service arrangements that are sponsored by large employers and that are offered only to employees (or their dependents) who are not eligible for coverage under any other group health plan offered by that employer. Such plans must still comply with prohibition of pre-existing condition exclusions or other discrimination based on health status, prohibition of rescissions, and parity in mental health or substance use disorder benefits.
- ACA Grandfathered Plans: A grandfathered group health plan or individual health insurance coverage that adds benefits or reduces or eliminates cost-sharing requirements for the diagnosis and treatment of COVID-19 or for telehealth and other remote care services during the public health or national emergency period related to COVID-19, will not lose its grandfathered status solely because it later reverses these changes upon the expiration of the COVID-19 emergency period.
- Mental Health Parity: Since the COVID-19 requirements are temporary and plans and insurers were not able to anticipate these requirements when designing their plans and coverage, the government will temporarily not take enforcement action against any plan or insurer that disregards benefits for the items and services that are covered without cost sharing under the FFCRA for purposes of the “substantially all” and “predominant” tests for financial requirements and quantitative treatment limitations of the Mental Health Parity and Addiction Equity Act of 2008.
- Wellness Programs: Plans and insurers may waive a standard (including a reasonable alternative standard) for obtaining a reward under a health-contingent wellness program if participants or beneficiaries are facing difficulty in meeting the standard as a result of circumstances related to COVID-19. However, to the extent a wellness program standard is waived as a result of the COVID-19 public health emergency, the waiver must be offered to all similarly situated individuals.
- Individual Coverage HRAs: An offer of and enrollment in an individual coverage HRA may greatly affect an individual’s enrollment for other coverage and his or her eligibility for a premium tax credit. Therefore, the FAQ guidance encourages employers that are affected by the COVID-19 pandemic to consider whether they can effectively provide the individual coverage HRA notice at least early enough in advance of the first day on which the individual coverage HRA may take effect. Such employers should consider whether notice will be sufficient to allow eligible employees adequate time to read and understand the notice, make an informed decision whether or not to enroll in the individual coverage HRA, and exercise special enrollment right to individual health insurance coverage.
Visit our COVID-19 Resource Center for up-to-date information to help you stay informed of the legal issues related to COVID-19.