All providers should take note of an under the radar provision of the CARES Act, 3202(a) & 3202(b), that requires all providers of diagnostic testing for COVID-19 to publicly post the cash price for such a test on the provider’s website (there are options for public posting if the provider has no website…). This is important because CMS may impose civil monetary penalties of up to $300/day for violations of this requirement. HHS has indicated that its goal in this requirement is to ensure transparency to both a) the plans and issuers that must comply under section 3202(a) of the CARES Act (which requires plans and issuers to reimburse any provider of COVID-19 diagnostic testing an amount that equals the negotiated rate, or if no negotiated rate exists, then the cash price of the test), and b) individuals who seek COVID-19 diagnostic testing.

Recently, on November 2, 2020, HHS issued additional regulations to clarify the scope of this provision of the CARES Act. Specifically, HHS has indicated that “each provider of a COVID-19 diagnostic test that has a website make public the cash price information…and that the information itself, or a link to a web page that contains such information, must appear in a conspicuous location on a searchable homepage on the provider’s website”. HHS notes that the following terms should be included on the provider’s homepage in connection with this requirement: The provider’s name; “price”; “cost”; “test”; COVID”; and “coronavirus”. If the provider has no website, then the provider will be required to make public its cash price information in writing upon request within two business days to the requestor (an email will suffice here) and by posting signage prominently at the location where the provider offers a COVID-19 diagnostic testing in a place likely to be viewed by members of the public seeking to obtain and pay for such testing. Note, HHS has sought public comment on the additional regulations promulgated on November 2, 2020. The deadline for comment is January 4, 2021, however, the regulations are effective from November 2, 2020 through the end of the Public Health Emergency.

If CMS determines a provider is noncompliant with the requirement to post the cash price of COVID-19 diagnostic testing, it may issue a warning notice and may require that the provider prepare a Corrective Action Plan (CAP), which would include the corrective actions or processes the provider will take to address the deficiency identified by CMS, and the timeframe by which the provider will complete the corrective action. The CAP would then be subject to CMS’ review and approval. If the provider fails to respond to CMS’ request to submit a CAP or comply with a CAP approved by CMS, civil monetary penalties of up to $300/day may be imposed.