Seyfarth Synopsis: On June 23, 2020, the DOL issued additional FAQs relating to the COVID-19 testing mandate under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES Act). FFCRA and CARES Act require that employer health plans cover testing for the coronavirus and COVID-19 with no cost sharing. See our earlier posts on this [here, here, here and here].
The FAQs, available here, contained several important clarifications for health plan sponsors and employers considering return-to-work strategies:
- Scope of Covered Tests. Employer health plans only have to cover the costs of COVID tests that have been approved by the FDA and tests for which the developer intends to (or has) requested emergency use authorization from the FDA (until such time as the FDA denies the application/request for emergency use authorization). If a participant has taken a test that is not FDA-approved, the plan is permitted to request evidence that the developer has submitted the test for emergency use authorization prior to paying for the test at 100%. If no such evidence is provided, the plan is permitted to charge cost-sharing (or deny coverage) for the test in accordance with its normal terms.
- Attending Healthcare Provider. Prior guidance indicated that plans are only required to provide no-cost coverage for testing that has been determined to be medically appropriate by the individual’s attending healthcare provider. The FAQs clarify that the “attending provider” need not be directly responsible for the person’s care (i.e., the person’s primary care provider). Instead, the provider’s order will suffice if the provider makes an individualized assessment, is licensed under applicable law, and is acting within the scope of his or her license.
- At-Home Testing Covered. The FAQs clarify that approved at-home tests must be covered with no cost-sharing, when ordered by an attending health care provider in accordance with the guidelines clarified above.
- No Coverage Required for “Return-to-Work” Testing. Many employers have begun routine testing of employees in conjunction with a return-to-work policy. The guidance clarifies that testing conducted to “screen for general workplace health and safety, for public health surveillance, or for any other purpose not primarily intended for individualized diagnosis or treatment” is not covered under the FFCRA/CARES Act mandate. Employers should consider whether federal or state obligations would otherwise require that the employer pay for such testing if mandated for return-to-work purposes (even though those costs cannot be passed on to the plan).
- Multiple Tests Covered. The FAQs clarify that there is no limit on the number of tests a given individual may receive at no cost under the employer’s health plan due to the FFCRA/CARES Act mandate.
- Non-Network Services Other than COVID Test. While the CARES Act requires that the plan pay the posted cash rate on the provider’s website for non-network COVID testing, the FAQs make clear that the plan may apply its regular repricing/reimbursement methodology for any other service provided in the non-network setting. So, for instance, if the plan typically pays a percentage of Medicare or otherwise applicable UCR for non-network services, that repricing process should be able to be applied to any non-network services received other than the actual charge for the COVID test itself. The FAQs do go on to state, however, that for non-network emergency services, the Affordable Care Act governs and/or sets a floor for the required reimbursement rate for non-network emergency services (the greater of the median in-network rate, the Medicare rate or the plan’s usual, customary and reasonable rate).
- Notification Requirements After Conclusion of Emergency Period. The FAQs suggest that plans must provide notice “within a reasonable timeframe” in advance of any cutback to the cost-free testing at the conclusion of the emergency period unless the plan had originally notified participants of the general duration of the benefits. Presumably, this means that if the original notice indicated that the plan would only cover cost-free testing during the emergency period, a subsequent notice wouldn’t be required.
- Stand-Alone Telehealth Permitted. In a big reversal, the FAQs provide that even though telehealth would be considered a “group health plan” subject to the various ACA requirements including the preventive service mandate, the DOL will permit employers to offer stand-alone telehealth or remote care services (i.e., offer such coverage to persons who do not have major medical coverage through the employer) due to the nature of the pandemic. This relief only applies to “large employers” (generally, those with more than 50 employees, on average, during the prior year). Further, the FAQ makes clear that certain other standards would still apply to such coverage (the prohibition on pre-existing condition exclusions, the prohibition against discrimination based on health status, the prohibitions on rescissions, and the MHPAEA requirements).
- No Impact on Grandfathered Status. For any grandfathered plans that still remain (there aren’t many), the FAQs clarify that actions taken to come into compliance with the FFCRA/CARES Act mandates or to roll back such provisions after the emergency period will not impact grandfathered status.
- No Impact on MHPAEA Compliance. The FAQs make clear that the no-cost COVID services required under the FFCRA/CARES Act mandate can be disregarded for purposes of MHPAEA compliance. Some plans had feared that adding no-cost medical services would require the plans to remove cost-sharing for mental health/substance abuse services. This guidance confirms that will not be the case.
- Wellness Programs. The FAQs clarify that a plan may waive an otherwise applicable wellness standard under a “health-contingent” wellness program due to the pandemic. So, for instance, if the wellness program typically required a participant to be tested to demonstrate he/she meets a certain cholesterol level, the plan may simply treat all similarly situated individuals as passing due to the pandemic.
- ICHRA Notice Requirements. The FAQs note that many employers are offering individual coverage HRAs (ICHRAs) for the first time this year. Under DOL guidance, the sponsor is required to send a notice to participants 90 days before the start of the plan year informing them (a) of the requirement to enroll in other coverage, and (b) of the potential impact on Marketplace tax credits. The FAQs note that while the DOL’s previously-announced flexibility surrounding legally required notices would also apply to this ICHRA notice, employers should carefully consider whether delaying provision of such notice could adversely impact employees.
The FAQs provide much needed clarification and guidance to employers as plan participants continue to deal with the effects of the pandemic, and as return-to-work planning for employees gains momentum.