Overview
For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
On April 11, 2020, the Departments of Labor, Health and Human Services, and Treasury (the departments) jointly issued FAQs regarding implementation of the Families First Coronavirus Response Act (the FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act).[1] The 14 FAQs address many questions related to required coverage by health plans in connection with the COVID-19 pandemic. The departments stress that the FAQs are designed to assist with compliance, rather than a threat of imminent enforcement.
The FAQs focus on Section 6001 of the FFCRA and Section 3201 of the CARES Act, both of which require group health plans and health insurance issuers to provide certain testing and related services for COVID-19 to participants without any cost-sharing requirements. While the FAQs cover a breadth of topics, this alert will focus on what we believe are the most instructive portions of the FAQs.
Which Plans are Covered?
FAQ 1 confirms that Sections 6001 and 3201 effectively cover all health insurance, including employer-sponsored plans (including plans that were grandfathered pursuant to the Affordable Care Act, all church plans, and all governmental plans). The FFCRA and CARES Act also apply to plans that are available in the individual marketplace.
Which Medical Treatment Must be Covered without Cost-Sharing?
FAQ 6 purports to address perhaps the biggest gap in the legislation - the types of testing that must be covered without any cost-sharing, particularly the services that "relate to" determining that testing is needed. The FFCRA requires services provided during a visit that "relate to the furnishing or administration" of testing or that relate "to the evaluation of such individual for purposes of determining the need" for diagnostic testing must also be provided with no cost sharing if those services ultimately lead to the administration of a test for COVID-19. We noted in our earlier alert (found here), the statutory language would appear to include many tests other than the simple COVID-19 test, especially where, at least as reported by the press, hospitals have been requiring blood tests, strep tests, and other diagnostic tests to rule out more benign ailments before a COVID-19 test is given. Thus, we noted, plans and insurers may well be paying completely for a wide variety of testing, above and beyond the single diagnostic test for the coronavirus.
This FAQ raises more questions than it answers. First, it indicates the "related services" will be covered with no cost sharing, only if they ultimately lead to the administration of a diagnostic test for COVID-19. This means a patient could go through a battery of tests only for the health care provider to determine a COVID-19 test is not necessary, leaving the patient with a host of unanticipated costs. We have asked the Department of Labor whether this significant limitation is indeed intended and staff has suggested this reading is compelled by the definition of related services in the statute. At least for the present, careful drafting of plan provisions and notices to employees implementing this requirement are important so that employees will recognize how important it is to insist on a test if they want the related services to be covered with no cost sharing.
Second, rather than providing a specific set of answers regarding what types of procedures are covered, this FAQ defers to the guidance of the Centers for Disease Control and Prevention (CDC) which delegates this decision-making to the judgment of individual medical providers. The only concrete example provided by FAQ 5 is that if a provider orders tests for things like influenza to determine whether there is a need to provide diagnostic testing for COVID-19, then those tests should be covered with no cost sharing. The FAQ summarizes the standard by stating that testing that is "medically appropriate for the individual, as determined by the individual's attending health care provider in accordance with accepted standards of current medical practice" must be covered with no cost sharing or prior authorization requirements. However, the language that requires that all of the related testing result in a COVID-19 test may make this regulatory generosity a huge financial burden on the plan participant. Finally, the FAQs also fail to answer whether the no cost sharing requirement applies to testing by out-of-network providers, or only by in-network providers.
FAQ 4 clarifies that even though the US Food and Drug Administration (FDA) does not believe that serological tests[2] used to detect the antibodies against SARS-CoV-2 should be used as the sole method of diagnosing COVID-19, such tests still must be covered without cost sharing as they meet the definitions set forth in the FFCRA and CARES Act. Based upon ongoing efforts to develop an antibody test, we expect that ultimately such testing will become quite routine, and thus, we expect that plans will be required to fully cover the costs of the antibody testing (although an employer using such a test to determine whether to allow employees to return to work may choose to cover the costs outside the plan).[3]
What Disclosures and Notices are Required?
FAQ 9 provides relief from some of the notice and disclosure requirements that would normally be required for employer-sponsored health plans. The departments have agreed not to take any action against entities that make changes to expand coverage to comply with rules of the FFCRA and CARES Act regarding testing for COVID-19 without providing 60 days advance notice. Instead, they are to provide notice of the expanded coverage as soon as "reasonably practicable." Again, these notices should be carefully drafted so that, assuming the agencies mean what they said, participants are warned that unless their emergency room testing leads to a COVID-19 test, they may incur substantial costs. We note that hospitals with an eye on reimbursement would do well to provide a COVID-19 test to anyone who comes to the emergency room, so that all testing can be reimbursed or the hospital may find itself financially disadvantaged as well.
Is Telehealth Covered?
Not surprisingly, FAQ 13 strongly encourages the use of and coverage of telehealth and other remote care services without any cost sharing requirements. This policy stretches to high deductible plans. Instead of the typical requirement that an individual in a high deductible plan must pay all costs until she meets her deductible, the CARES Act (Section 3701) provides a safe harbor for certain telehealth and other remote care services. The safe harbor allows a participant in a high deductible plan to receive telehealth or remote care services before that participant reaches her deductible. The departments support this safe harbor as a mechanism for those with COVID-19-type symptoms to receive treatment remotely without having to risk exposing others through an in person visit. The safe harbor applies not just to COVID-19-related conditions, but to all telehealth services. This relief dovetails with the statutory provision that makes clear that a high deductible plan will not fail to meet the requirements for such plans if it provides testing and related services in accordance with the CARES Act without cost to the participant.
Conclusion
While the FAQs provide some helpful guidance, we would not expect this to be the end. More guidance seems inevitable given the fluidity of the unique situation in which we find ourselves.
[1] See FAQs About Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Act Implementation Part 42, available here.
[2] Serological tests are blood-based tests, designed to determine whether antibodies to the coronavirus are contained in a person’s blood, leaving them less susceptible to COVID-19.
[3] See EEOC FAQs on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, FAQ G1, available here.
