Agencies Issue FAQ Guidance on COVID-19-Related Group Health Plan Issues, Including Clarifications on Coverage of Diagnostic Testing and Modifications to SBCs

The DOL, IRS, and HHS have issued FAQ guidance addressing implementation of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) for group health plans. As background, the FFCRA generally requires group health plans and insurers to cover (without cost-sharing, prior authorization, or other medical management requirements) certain items and services related to diagnostic testing for the detection of SARS-CoV-2 or the diagnosis of COVID-19 (diagnostic tests). (See our Checkpoint article on the FFCRA.) The CARES Act requires coverage of a broader range of diagnostic items and services and generally requires plans and insurers to reimburse any provider of diagnostic tests the cash price listed by the provider on a public website or a lower negotiated rate. (See our Checkpoint article on the CARES Act.) Here are highlights from the agency FAQs:

• Mandated Coverage of Diagnostic Tests. Plans and insurers must cover in vitro diagnostic tests (and the administration of tests) that are (1) approved, cleared, or authorized by the FDA; (2) subject to a developer’s request (or intended request) for FDA emergency use authorization; (3) developed in and authorized by a state; or (4) determined appropriate by HHS. Serological tests to determine antibodies for COVID-19 are considered diagnostic tests and must be covered if they otherwise meet the requirements. States may impose additional requirements on insurers with respect to the diagnosis or treatment of COVID-19, so long as the requirements do not prevent the application of the federal requirements.
• Mandated Coverage of Office Visits and Other Services. Coverage is also mandated for items and services furnished during health care provider office visits (including in-person and telehealth visits and drive-through screening and testing visits), urgent care center visits, and emergency room visits that result in an order for or administration of a diagnostic test, but only to the extent the items and services relate to the furnishing or administration of the test or the evaluation of the individual for purposes of determining the need for the test. For example, if an individual’s provider determines that influenza tests or blood tests should be performed during a visit to determine an individual’s need for a diagnostic test and the visit results in an order for, or administration of, a diagnostic test, the plan or insurer must provide coverage for the related tests without cost-sharing, prior authorization, or other medical management requirements. Plans and insurers are required to provide coverage for items and services furnished by in-network as well as out-of-network providers.
• Coverage of EAP and On-Site Clinic Benefits. EAPs are considered excepted benefits only if (among other things) the EAP does not provide significant benefits in the nature of medical care. An EAP will not be considered to provide benefits that are “significant in the nature of medical care” solely because it covers diagnostic tests while a COVID-19 federal emergency health declaration is in effect. In addition, an employer’s on-site medical clinic can cover diagnostic tests without losing its excepted benefit status.
• Nonenforcement Policy for SBC and Plan Modifications. Agencies will not take enforcement action against plans or insurers that adopt modifications to provide greater coverage for COVID-19 diagnosis or treatment without providing the minimum 60-day advance notice to enrollees required for material modifications to the Summary of Benefits and Coverages (SBC), so long as notice of the changes is provided as soon as reasonably practicable. HHS also will not take enforcement action against insurers that adopt midyear changes to increase coverage for services related to COVID-19 diagnosis or treatment. But if plans or insurers maintain changes beyond the federal emergency health declaration period, they must comply with all other applicable requirements to update plan documents or terms of coverage. HHS will take enforcement action against a plan or insurer that attempts to limit or eliminate other benefits or increase cost-sharing to offset the costs of increasing benefits related to COVID-19 diagnosis or treatment.
• Coverage of Telehealth and Other Remote Care Services. The temporary safe harbor allowing high-deductible health plans (HDHPs) to cover telehealth and other remote care services without a deductible for plan years beginning on or before December 31, 2021 (see our Checkpoint article), applies generally to HDHP coverage for telehealth and other remote care services and is not limited to coverage for COVID-19-related services. In addition, HHS will apply the nonenforcement policy described above if plans or insurers add benefits, or reduce or eliminate cost-sharing, for telehealth and other remote care services. However, to the extent plans or insurers maintain changes beyond the emergency health declaration period, they must comply with all other applicable requirements to update plan documents or terms of coverage.

EBIA Comment: The FFCRA’s mandates applied immediately to most insurers and group health plans (including insured, self-insured, and grandfathered group health plans but not short-term limited duration insurance, excepted benefits, and retiree plans). The clarifications on diagnostic tests answer a lingering question on the scope of the testing mandate—apparently if the provider doesn’t order or administer a COVID-19 diagnostic test, then no part of the visit will be subject to the FFCRA, and the plan’s regular cost-sharing rules will apply to the visit. For more information, see EBIA’s Group Health Plan Mandates manual at Section XVI.C (“Mandated Coverage of Diagnostic and Preventive Services”) and HIPAA Portability, Privacy & Security manual at Sections VI.F (“Excepted Benefits: Certain Health FSAs, Dental, Vision, and Others”) and VI.L (“Employee Assistance Programs (EAPs)”). See also EBIA’s Health Care Reform manual at Section XVI.H (“Updating the SBC: Notice of Material Modifications”), ERISA Compliance manual at Section XXIV.O (“Summary of Benefits and Coverage (SBC) Under Health Care Reform”), and Self-Insured Health Plans manual at Section XI.E.5 (“Telemedicine”).

Contributing Editors: EBIA Staff.