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04.16.20

Departments of Labor, Treasury, and HHS FAQs on coronavirus services and telehealth

BY Yelena F. Gray

On April 11, the Departments of Treasury, Labor, and Health & Human Services jointly issued FAQs addressing the impact of the Families First Coronavirus Relief Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) on group and individual market health plans. Although much of the guidance contained in the FAQs simply clarified certain aspects of the FFCRA and CARES Act, the FAQs did address a few important outstanding questions.

Coverage Mandate Effective Period

The Families First Coronavirus Relief Act (FFCRA), as amended by the CARES Act, requires health plans and insurance issuers to cover without cost sharing, prior authorization, or medical management certain COVID-19-related diagnostic tests, services, and products. The period during which the coverage mandate applies begins on March 18 and will end when the COVID-19 public health emergency is no longer in effect. Unless the Secretary of HHS declares the end of the emergency earlier or extends the emergency period, the COVID-19 public health emergency will end on June 16, 2020.

Antibody Tests Included in Mandate

Generally, the tests that the FFCRA requires to cover include in-vitro tests that are used in the diagnosis of the SARS-CV-2 virus and the COVID-19 disease it causes. The Departments clarified that serological tests for COVID-19 that are used to detect antibodies against the novel virus must also be covered without cost-sharing or prior authorization. They noted, however, that to date, the FDA approved only one emergency application for a serological test.

The FFCRA also requires coverage of items and services that are provided during a diagnostic office, emergency room, or urgent care visit so long as the visit results in the administration of or order for the COVID-19 test, provided the products relate to the furnishing or administration of the test or evaluating the individual for the need of the testing. The attending health care provider (and not the plan, issuer, or a hospital) must determine what services are necessary. The FAQs point out that often a provider might order preliminary tests for other possible illnesses before testing for COVID-19 (e.g., a flu or blood test). So long as those tests ultimately lead to the administration of a COVID-19 test, the plan must cover the preliminary testing without cost sharing.

Non-Traditional “Visits” Within Scope

A diagnostic “visit” for these purposes includes the administration of the test in non-traditional settings, such as drive-through screening and testing sites where licensed health care providers are administering the test. According to the FAQs, employers may offer COVID-19 testing at their on-site clinics or through an employee assistance program (EAP). The testing will not cause the clinics or EAPs to provide substantial medical services and lose their status as excepted benefits.

Non-Enforcement of Prior Notice of SBC Changes

In the event that a group health plan is amended mid-year causing the information contained in the plan’s summary of benefits and coverage (SBC) to be no longer accurate, the ACA requires that the plan provide advance notice of at least 60 days. Because most health plans are required to waive cost-sharing for COVID-19 testing and diagnostic services, and many plans are making elective changes (e.g., cost-sharing waivers for telehealth or for inpatient COVID-19 treatment), the Departments recognized that applying the 60-day advance notice period becomes impossible during the public health emergency. Therefore, the Departments announced a non-enforcement policy for plans that are modified mid-year to provide greater coverage for the diagnosis and treatment of COVID-19 and coverage of telehealth on a first dollar basis without a 60-day day notice. The plans must provide notice of the changes to the participants as soon as reasonably practicable. Plans that wish to extend the enhancement beyond the period of the public health or national health emergency must, however, comply with generally applicable disclosure and plan documentation requirements. Further, the Departments caution that they will take enforcement action against plans and issuers that try to reduce other benefits or increase cost sharing in an attempt to recoup their cost of providing COVID-19 testing and telehealth.

Plan sponsors should work with their advisors and third-party administrators to make appropriate coverage adjustments and notify participants of the changes. They should also be on a lookout for further guidance the Departments intend to issue as more questions emerge.

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Yelena F. Gray

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