The US Departments of Labor, Health and Human Services, and the Treasury (Departments) issued a set of 14 frequently asked questions (FAQs) on April 11. The FAQs are intended to offer guidance on the application and implementation 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 the coronavirus (COVID-19). The FAQs generally are applicable for the duration of the public health emergency associated with COVID-19 (which will end no earlier than June 16, 2020).
The Departments emphasized that that their approach to implementation is not to impose penalties, but rather to focus on assisting group health plans and insurers that are working in good faith to come into compliance with requirements of FFCRA and the CARES Act. The FAQs also address several topics including broader ERISA and ACA issues raised by FFCRA and the CARES Act, excepted benefits, telehealth, and other remote care services.
Some of the significant topics in the FAQs from the Departments include the following:
- Confirming that the provisions of FFCRA and the CARES Act apply to insured and self-insured group health plans, individual health insurance plans, non-federal governmental plans, church plans, and grandfathered plans but DO NOT apply to short-term limited-duration insurance, excepted benefits, or retiree-only group health plans.
- Confirming that in vitro diagnostic tests include serological tests for COVID-19. Serological tests are used to detect antibodies against the virus and are intended for use in the diagnosis of the disease or condition of having current or past infection of the disease. Therefore, group health plans and insurers must cover serological tests for COVID-19 without any cost-sharing requirements, prior authorization, or other medical management techniques.
- Confirming that any additional related diagnostic testing performed during a patient’s visit to his/her physician should also be covered. For example, if a patient receives other tests (influenza, blood tests, etc.) during a physician visit and the visit results in an order for, or administration of, a COVID-19 diagnostic test, the group health plan or insurer must provide coverage for the related testing without any cost-sharing requirements, prior authorization, or other medical management techniques.
- Noting that the prohibition on cost-sharing requirements, prior authorization, or medical management techniques for coverage of COVID-19 diagnostic testing also means that such testing must be provided without cost-sharing if the participant receives the test from an out-of-network provider.
- Offering advance notification relief to plan sponsors triggered by amending their group health plans to add benefits or reduce or eliminate cost-sharing for the diagnosis and treatment of COVID-19. This relief eliminates the requirement to provide a 60-day advance notice of plan amendments that impact the Summary of Benefits and Coverage. Such notice should, instead, be provided as soon as reasonably practicable. This advance notification relief also applies to group health plans that add benefits or reduce (or eliminate) cost-sharing for telehealth and other remote care services. However, to the extent that a group health plan or insurer continues these changes beyond the end of the public health emergency period, they must comply with all other requirements related to updating plan documents (such as SMM or SPD information and timing requirements).
- Noting that an EAP will remain an excepted benefit and will not be considered to provide benefits that are significant in the nature of medical care solely because it offers benefits for the diagnosis and treatment of COVID-19 while the period of public health emergency declaration is in effect.
- Noting that an onsite clinic can offer COVID-19 testing and remain an excepted benefit.
- Confirming that an HDHP/HSA participant can, beginning March 27, 2020, receive telehealth or other remote care services before satisfying the deductible of the HDHP. This opportunity will continue for all plan years beginning on or before December 31, 2020.
- Finally, noting that the Departments will take enforcement action against any group health plan or insurer that attempts to limit or eliminate other benefits, or to increase cost-sharing, to offset the costs it must now cover related to the diagnosis and/or treatment of COVID-19.
Unfortunately, the FAQs from the Departments did not:
- provide a retroactive effective date for either the FFCRA (effective March 18) or the CARES Act (effective March 27), which calls into question some of the earlier dates chosen by insurers and TPAs;
- address how plan sponsors can extend telemedicine to individuals who are not otherwise eligible for health plan coverage without triggering ACA mandates and preventive care requirements;
- address change in status rules regarding whether individuals can stop, start, or change group health coverage due to FFCRA or CARES Act changes;
- address how plans (or health care FSAs) should handle expenses that cannot be incurred until after the end of a plan year because of the public health emergency;
- address any delays in filing Form 5500s or other related forms due to the public health emergency declaration.
Please contact the authors or your Morgan Lewis contact if you have any questions. For updated information about COVID-19, please visit our resource page.