FAQs Provide Guidance on COVID-19 Testing and Diagnosis Requirements Affecting Employer Health Plans

The Departments of Labor, Health and Human Services and Treasury (collectively, the “Departments”) jointly issued FAQ guidance regarding implementation of the health coverage provisions under the Families First Coronavirus Response Act (“FFCRA”) and the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”).

FFCRA, as amended by the CARES Act, generally requires group health plans and health insurance issuers offering group or individual health insurance coverage to provide benefits for certain items and services related to diagnostic testing for the detection or diagnosis of COVID-19.  Plans and issuers must provide this coverage without imposing any cost-sharing requirements (including deductibles, copayments and coinsurance) or prior authorization or other medical management requirements.

According to the FAQs, plans and issuers are required to comply with these COVID-19 testing requirements for services furnished on or after March 18, 2020 and during the public health emergency related to COVID-19 (which is set to expire on July 25, 2020, unless extended or terminated earlier.[1])

Key takeaways from the FAQs:

• Covered plans. Covered plans subject to the COVID-19 testing requirements include insured and self-insured group health plans subject to ERISA, including private employment-based group health plans, non-federal governmental plans (such as plans sponsored by states and local governments), grandfathered plans under the Affordable Care Act, church plans, individual health insurance coverage and student health insurance coverage.

The requirements do not apply to short-term limited duration insurance, excepted benefit plans under the Affordable Care Act (such as standalone dental and vision plans), or group health plans that do not cover at least two current employees (such as retiree-only plans).

• Tests Covered. Employer health plans are required to provide coverage for in vitro diagnostic testing for COVID-19, including tests that are approved or authorized by the US Food and Drug Administration (FDA), tests that the developer has requested (or intends to request) emergency use authorization from the FDA tests, tests that are developed in and authorized by a state that has notified HHS of its intention to review tests, and other tests approved by HHS in guidance.  The FAQs clarify that in vitro diagnostic tests include serological tests for COVID-19 which are used to detect antibodies against the virus that causes COVID-19, and are intended for use in the diagnosis of the disease or condition of having current or past infection with the virus.
• Expansion of Items/Services Covered. The FAQs expand the types of items and services related to the diagnosis and testing of COVID-19 that must be covered without any cost sharing, prior authorization or other medical management requirements.  For example, if the individual’s attending provider determines that other tests (e.g., influenza tests or blood tests) should be performed during a visit to determine the individual’s need for COVID-19 diagnostic testing, the plan or issuer must provide coverage for the related tests without cost-sharing, prior authorization or other medical management requirements if the visit results in a COVID-19 test or an order for a COVID-19 test.
• Medically Appropriate. The FAQs state that health plans must cover the cost of all items and services relating to COVID-19 testing that the individual’s healthcare provider determines are medically appropriate for the individual, in accordance with accepted standards of current medical practice without imposing any cost-sharing, prior authorization or other medical management requirements.
• Drive-Through Screenings. FFCRA, as amended by the CARES Act, requires plans to cover items and services provided during healthcare provider office visits (which include in-person visits and telehealth visits), urgent care center visits and emergency rooms visits.  The FAQs clarify that the term “visit” will be construed broadly to include both traditional and non-traditional care settings, such as “drive-through” screening and testing site where licensed health care providers are administering COVID-19 diagnostic testing.
• In-Network/Out-of-Network Providers. Health plans are required to cover the cost of COVID-19 testing.  Where the plan has a negotiated in-network rate with a provider in effect before the public health emergency was declared, such rate will apply for the duration of the emergency.  For out-of-network coverage, the plan must pay the cash price for such service as listed by the provider on a public website, or may negotiate a lower rate.  All providers of diagnostic tests for COVID-19 must make public the cash price of the COVID-19 test or face penalties of up to $300 per day.
• Non-Enforcement of SBC modification rules. To ease employers concerns that the immediate implementation of these coverage requirements would violate the Summary of Benefits and Coverage (SBC) rules on timing of mid-year changes, the FAQs clarify that the Departments will not take enforcement action against any employer that modifies a group health plan to provide greater coverage, or reduce or eliminate cost-sharing, related to the diagnosis and/or treatment of COVID-19 without first providing participants with a new SBC at least 60 days in advance.  This non-enforcement policy extends to situations where the employer plan adds benefits, or reduces or eliminates cost sharing, for telehealth and other remote care services.  Instead, health plans must provide notice of these changes as soon as reasonably practicable by issuing a new SBC or a notice of material modification describing the changes.
• Excepted Benefits. The FAQs clarify that employers may offer benefits for diagnosis and testing for COVID-19 at an on-site clinic or through an employee assistance program (“EAP”) without jeopardizing the status of such clinics or EAPs as excepted benefits.

If you have any questions about these FAQs or their impact on employer group health plans, please contact the author or any member of our team.

Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.

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[1] On April 21, 2020, HHS Secretary Azar renewed, effective as of April 26, 2020, his January 31, 2020 determination that a public health emergency exists and has existed since January 27, 2020, nationwide.  Under Section 319 of the Public Health Service Act, a public health emergency declaration lasts until the Secretary of HHS declares that the public health emergency no longer exists, or upon the expiration of the 90-day period beginning on the date the Secretary declared a public health emergency exists, whichever occurs first.

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