Federal Agencies Issue Additional Guidance on COVID-19 Issues for Group Health Plans

Last week, the Department of Labor, the Department of the Treasury, and Health and Human Services (HHS) issued another set of COVID-19 FAQs for group health plans (GHPs).

The Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) require GHPs to provide benefits for COVID-19 testing and related services at 100% (no deductibles, co-payments, or co-insurance can be imposed on the participant) and without any prior authorization or similar medical management requirements. The FAQs provide the following additional information on this testing mandate and other COVID-19 issues:

• GHPs are required to provide coverage for at-home COVID-19 tests, if these tests are ordered by a medical provider and otherwise meet the requirements for tests under the FFCRA and the CARES Act.
• GHPs are not required to provide coverage for COVID-19 tests that are required for surveillance or employment purposes, as opposed to tests that are ordered by a medical provider to diagnose COVID-19. Examples of such tests are COVID-19 tests required to return to or remain at work or tests that are conducted at airports or for other travel purposes. It is not clear whether GHPs must pay 100% of the costs of COVID-19 “screening” tests (those ordered for a patient coming into a hospital or other medical facility for non-COVID-19 purposes, such as a scheduled procedure or a medical emergency, who does not have COVID-19 symptoms).
• GHPs are required to cover multiple COVID-19 tests on the same individual, provided the tests are medically appropriate for the individual as determined by the medical provider.
• A COVID-19 test is only required to be covered by a GHP if the test falls into one of four categories listed below.
  1. Tests approved by the Food and Drug Administration (FDA).
  2. Tests for which the developer intends to submit or has submitted a request for emergency use authorization from the FDA.
  3. Tests developed in and authorized by a state that is reviewing COVID-19 tests.
  4. Tests approved by HHS in other guidance.

  The guidance provides that a list of all of the tests/developers in the first two categories is available on the FDA website. States that are reviewing COVID-19 tests under the third category can also be found on the FDA website, which currently names Connecticut, Maryland, Mississippi, Nevada, New Jersey, New York, and Washington. As to the fourth category, the guidance clarifies that no tests have yet been approved by the HHS in other guidance. Additional information on these requirements can be found at https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-testing-sars-cov-2#offeringtests.

• GHPs are required to pay a facility fee at 100%, if the medical provider or facility charges a facility fee in connection with the furnishing or administration of a covered COVID-19 test.
• The guidance reiterates that out-of-network medical providers will not be able to balance bill the plan participant for charges in excess of what the GHP pays for the covered COVID-19 test and related office visit and supplies.
• For COVID-19 tests administered in an out-of-network emergency room, the GHP must pay 100% of the rate the GHP has negotiated with the emergency room provider (if it has done so) or must pay the cash price for the COVID-19 listed on the provider’s website. The guidance clarifies that this rule supersedes the Affordable Care Act’s (ACA) otherwise applicable requirements for reimbursement of emergency room charges at out-of-network facilities.
• The FAQs clarify that plans with grandfathered status under the ACA will not lose their grandfathered status as a result of providing enhanced benefits for COVID-19 testing and telehealth during the pandemic and then removing these benefits after the pandemic has passed.
• The GHP’s coverage for COVID-19 testing mandated by federal law can be disregarded when conducting certain tests to comply with federal mental health parity rules.
• In prior guidance, the agencies stated that they will not enforce the requirement to provide a minimum 60-day advance notice to participants that is required when there is a material modification to the Summary of Benefits and Coverage (SBC) due to a GHP adopting the mandated benefits for COVID-19 testing and adding new or improved telehealth benefits. In the new guidance, the agencies state that if a GHP amended later to eliminate these benefits, the GHP has satisfied the requirement to provide advance notice of a material modification to the SBC if the GHP has previously notified its participants of the duration of the additional benefits or if it notifies them within a reasonable time before the additional benefits are eliminated.
• A large employer (more than 50 employees) may provide a GHP that provides telehealth benefits to employees who are ineligible for the employer’s GHP without complying with many of the mandates of the ACA.
• Health-contingent wellness programs may waive standards for obtaining a reward under the wellness program because of difficulties due to COVID-19, if the standards are waived for all similarly situated individuals.
• The guidance provides relief for the 90-day advance notice requirement that employers who are sponsoring an individual coverage health reimbursement arrangement must otherwise provide.

The FAQs are available at www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-testing-sars-cov-2#offeringtests.