Renewal of HHS’s Determination of Public Health Emergency Continues Mandate for 100% Coverage for COVID-19 Testing

Effective October 23, 2020, the Secretary of the Department of Health and Human Services (HHS) has renewed the determination that a public health emergency relating to COVID-19 exists. Each renewed determination lasts for 90 days unless HHS determines the public health emergency has ceased to exist and terminates the declaration at an earlier date. This means the current renewal will end January 21, 2021, unless extended or terminated.

Under the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), group health plans are required to cover certain COVID-19-related diagnostic health services including:

• In-vitro diagnostic tests for the detection of SARS-CoV-2 or COVID-19.
• Serological tests to determine antibodies for COVID-19.
• Items and services furnished during office visits (including telehealth), urgent care visits, and emergency room visits that relate to and result in either an order for or administration of the test.

These diagnostic services are required to be provided without cost-sharing, prior authorization, or other medical management requirements for the duration of the public health emergency.

As discussed in our prior legal alert, the Departments of Labor, HHS, and Treasury released FAQs in April to answer many questions about the testing requirement, such as the scope of testing and applicability on out-of-network services and retiree plans.

A related provision in the CARES Act requires group health plans to cover, without cost-sharing, qualifying preventive services relating to COVID-19, such as vaccines, within 15 days after the date a recommendation is issued by the U.S. Preventive Services Task Force or the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention. Unlike the requirement to cover diagnostic services, the preventive services mandate is permanent and is not limited to the duration of the public health emergency.

The Departments of Treasury and Labor have issued guidance delaying certain COBRA, HIPAA special enrollment, and claims deadlines in ERISA plans. This guidance is not dependent upon the HHS declaration of a public health emergency due to COVID-19. Rather, it expires at the end of the earlier of (1) the President announcing that a national emergency no longer exists for COVID; or (2) one year from the beginning of the outbreak period defined in the guidance, or March 1, 2021. See our prior legal alert for more information.

We continue to monitor the effects of the coronavirus pandemic and related legislation on employee benefit plans. If you have questions on how current laws in response to the COVID-19 pandemic impact your company’s group health plan(s), please contact a member of the Stoel Rives Employee Benefits team.