FAQs Part 43: Additional Health Plan Guidance Re: COVID-19 Regulations

On June 23, 2020, the Departments of Labor, HHS, and Treasury (Departments) published additional guidance on how the Families First Coronavirus Response Act (the FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) apply to health plans.

  • Under the FFCRA, plans and issuers must provide benefits for certain items and services related to testing for the detection of COVID-19 without imposing any cost-sharing requirements (e.g., deductibles, co- payments, and coinsurance), prior authorization, or other medical management requirements.
  • The CARES Act expanded the range of diagnostic items and services that plans and issuers must cover under FFCRA.
  • It requires plans and issuers providing coverage for these items and services to reimburse any provider of COVID-19 diagnostic testing an amount that equals the negotiated rate or, if the plan or issuer 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.
  • Providers of diagnostic tests for COVID-19 who don’t list cash price of a COVID-19 diagnostic test on the provider’s public internet website face potential enforcement action including civil monetary penalties.

FAQs Part 43 provides additional guidance for application of these requirements.

FAQ 43: Guidance on Tests

Plans must cover tests that:

  • (A) have been approved by the FDA; or
  • (B) for which the test’s developer has requested or intends to request emergency use authorization from the FDA; or
  • (C) is developed in and authorized by a State that has notified the Secretary of HHS of its intention to review tests intended to diagnose COVID–19[i].

Covered costs include facility fees. To learn which tests meet which of the three criteria, click below:

Covered tests may include those intended for at-home testing. Patients may not be balance billed for a covered test. At est must be covered if they are ordered by an “attending provider*.” There is no limit to the number of tests that a plan must cover provided that the tests are diagnostic and medically appropriate for the individual.

The FFCRA requires coverage of items and services only for diagnostic purposes. Therefore, coverage for testing for purposes of general workplace health and safety (including return-to-work testing) does not need to be covered.

The law does not regulate the amount that a provider may charge for COVID-19 testing.  If the provider has not negotiated a price with a plan, the provider must charge the price posted on its website.  If the provider has not posted a price, the plan and provider may negotiate a price.**

FAQ 43: Guidance on Notices

The ACA requires plans to provide a new SBC 60 days before the addition of benefits such as those required by the FFCRA and CARES Act.  The Departments waived those requirements given the emergency nature of the relief provided in those acts.

The coverage requirements of the FFCRA and CARES act automatically expire once the national health emergency is no longer in effect.  That raised the question of whether the 60-day notification rule applies if a plan decides to cease offering the testing benefit.

Guidance provides that the Departments will consider a plan or issuer to have satisfied its obligation to provide advance notice of the reduction in benefits  if it had previously notified the participant of the general duration of the additional benefits coverage or reduced cost sharing (such as, that the increased coverage applies only during the COVID-19 public health emergency) or notifies the participant of the general duration of the additional benefits coverage or reduced cost sharing within a reasonable time frame in advance of the reversal of the changes.

Employers that sponsor individual coverage HRA are required to provide employees with a notice, generally at least 90 days before the start of the plan year that includes information about requirements for individual coverage HRAs, the terms of the HRA, and certain consequences of accepting or not accepting the individual coverage HRA, among other information.***

  • Under previous guidance, an individual coverage HRA notice that would otherwise be required to be furnished between March 1, 2020, and 60 days after the announced end of the COVID-19 National Emergency, generally may be furnished as soon as administratively practicable under the circumstances.
  • The guidance does not impose any specific requirements, but rather encourages employers affected by the COVID-19 pandemic to consider whether they can provide the individual coverage HRA notice at least early enough that eligible employees have sufficient time to read and understand the notice and make an informed decision whether or not to enroll in the individual coverage HRA.

FAQ 43: Relief Related to ACA Mandates

Under the ACA, group health plans must meet certain minimum requirements.  A plan that only provides for coverage for telehealth and other remote care services would not be able to meet those requirements.  However, the Departments will not enforce those requirements with respect for a group health plan that solely provides benefits for telehealth or other remote care services.  This relief is limited to arrangements that are sponsored by a large employer (as defined under the ACA) 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.

  • However, such plans must still meet applicable requirements relating to parity in mental health or substance use disorder benefits and prohibitions of (1) pre-existing condition exclusions or other discrimination based on health status; (2) discrimination against individual participants and beneficiaries based on health status; and (3) rescissions.

The guidance also establishes that implementing changes requires by FFCRA and CARES Act only for the period in which a public health emergency or national emergency related to COVID-19 is in effect will not cause a plan to lose its grandfathered status solely because these changes are later reversed and the terms of the plan or coverage that were in effect prior to the applicable emergency period are restored.

Under the Mental Health Parity and Addiction Equity Act of 2008, mental health and substance use Disorder (MH/SUD) benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical/surgical benefits in a particular benefit classification.

  • The guidance provides that a plan may disregard 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.

Finally, the guidance confirms that plans are permitted to waive a standard (including a reasonable alternative standard) for obtaining a reward under a health-contingent wellness program.  However, to the extent the plan or issuer waives a wellness program standard as a result of the COVID-19 public health emergency, the waiver must be offered to all similarly situated individuals.

[i] There is fourth catch-all category for tests that the Secretary of HHS may approve.  Currently, there are no tests in that category.

*An “attending provider” is an individual who is licensed (or otherwise authorized) under applicable law, acting within the scope of the provider’s license (or authorization), and is responsible for providing care to the patient. A plan, issuer, hospital, or managed care organization is not an attending provider.

**The guidance frankly acknowledges that the law is silent with respect to the amount to be reimbursed for testing in circumstances where the provider has not made public 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.

***This includes information about the need to be covered under an ACA-compliant individual health insurance policy as well as the eligibility for a premium tax credit. 

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