Tri-Agency FAQs Clarify Group Health Plan Obligations under FFCRA and CARES Act

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The Departments of Labor, Health and Human Services and the Treasury have jointly issued an FAQ regarding implementation of the various requirements for group health plans under the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act. In recognition of the good faith efforts plan sponsors and insurers are making to comply with the new laws, the FAQ clarifies several of their questions, and we outline some of the key takeaways in this article.

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Earlier this month, the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury jointly issued an FAQ (found here, as updated here) regarding implementation of the various requirements for group health plans under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Click here, here and here for our previous posts on the requirements and their impact on group health plans. In recognition of the good faith efforts plan sponsors and insurers are making to comply with the new laws, the FAQ clarifies several of their questions. Some of the key takeaways from the FAQs are outlined below.

1. Application of the FFCRA and CARES Act provisions. The FAQs clarify that the new legislation applies to both self-funded and fully insured employer-sponsored group health plans, whether or not they are subject to the Employee Retirement Income Security Act of 1974 (ERISA). This includes, for example, governmental plans, church plans and grandfathered plans. However, not all plans are now subject to the new requirements, including retiree-only plans. Further, the FAQs state that the requirements do not apply to “excepted benefits,“ including certain limited dental and vision plans, employee assistance programs (EAPs) and on-site clinics. Importantly, voluntarily offering COVID-19 diagnosis and testing during the period while the public health emergency is in effect will not cause an EAP or on-site clinic to lose its excepted benefit status. As a result, EAPs and/or on-site clinics may provide an avenue for employers to provide diagnosis and testing for COVID-19 to employees who are not otherwise covered under the employer’s group health plan.

2. Coverage must be provided from March 18, 2020, until the end of the public health emergency. The FAQs specify the group health plans must cover COVID-19-related items and services as of March 18, 2020, and maintain that coverage through the end date of the declared COVID-19 public health emergency.

3. Clarification of covered tests. The FAQs state that serological tests, which are used to detect antibodies against the SARS-CoV-2 virus, are considered “in vitro diagnostic“ COVID-19 tests, which must be covered without cost-sharing, prior authorization or other medical management techniques. In addition, the FAQs clarify that because the Centers for Disease Control and Prevention (CDC) encourages providers to test for causes of respiratory illness other than COVID-19, clinicians may administer other types of tests – such as influenza and/or blood tests – when evaluating whether a patient should be tested for COVID-19. Where these tests are used in connection with the detection of COVID-19, they must also be covered without cost-sharing, prior authorization or other medical management techniques. The FAQs defer to the attending provider to determine which tests are appropriate.

4. “Visits“ include non-traditional visits. The FFCRA and CARES Act provide for coverage of COVID-19-related items and services furnished during “visits“ to healthcare providers. The FAQs clarify that “visits“ should be broadly construed to include non-traditional care settings, such as drive-through screenings and other sites where licensed providers administer diagnostic testing.

5. Required coverage applies to out-of-network providers. The FAQs state that plans must cover COVID-19 items and services even if obtained through out-of-network providers. Where there is no previously negotiated rate between a provider and the group health plan, the provider is required to charge the cash price for the item or service, which must be listed publicly online. There is always the option for the plan and the provider to negotiate a lower rate.

6. Telehealth coverage is encouraged. The FAQs recognize the importance of access to telehealth and other remote care services in combating the COVID-19 public health emergency, and they emphasize that the new legislation provides certain flexibilities in plan administration designed to increase access to these services for plan participants. The FAQs clarify that the permission afforded by the CARES Act for high-deductible health plan (HDHP) participants to receive telehealth services before the deductible has been satisfied extends to services provided outside the HDHP. This means that HSA-eligible participants may receive telehealth services that are not provided by the HDHP prior to satisfying the deductible and still contribute to their health savings accounts (HSAs). The FAQS do not, however, clarify which types of services are meant by the FAQs‘ and CARES Act’s use of the term “other remote care services.“ More agency guidance would be welcome on this point as employers work to provide care for their employees amidst the growing COVID-19 pandemic.

7. Relief from notice requirements. The Patient Protection and Affordable Care Act (PPACA) generally requires that notice of any mid-year plan material modification affecting the information provided on the applicable summary of benefits and coverage (SBC) be provided at least 60 days prior to the effective date of the change. In recognition of the difficulties plan sponsors would face in providing the required coverages in a timely fashion while also complying with this notice requirement, the FAQs stipulate that no federal agencies will enforce the notice requirement against an employer or insurer for modifying a plan to provide greater coverage in compliance with the new laws without providing the 60 days‘ notice. The non-enforcement policy is limited and only applies during the period while the public health emergency is in effect. That said, plan sponsors and insurers should still provide notice, whether through an updated SBC or summary of material modifications, as soon as reasonably possible. Providing notice is likewise prudent for changes that do not affect the information provided on the SBC.