On February 26, 2021, the Department of Labor (DOL), Health and Human Services (HHS) and the Treasury (collectively, the “Agencies”) released Frequently Asked Questions (FAQs) regarding health coverage issues related to COVID-19. The guidance, “FAQs FFCRA and CARES Act Part 44,” clarified how group health plans (GHPs) – including self-insured and grandfathered plans – must implement the COVID-19 test and vaccine requirements of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The new guidance supplements the already-existing COVID-19 guidance FAQs Part 42 and FAQs Part 43 that the Agencies released on April 11, 2020, and June 23, 2020.
The FFCRA and CARES Act require GHPs to provide first-dollar coverage for plan participants’ coronavirus testing and vaccines.
In general, Provisions in the FFCRA, CARES Act and the implementing regulations require GHPs and insurers to cover COVID-19 diagnostic testing of plan participants at no cost. The FFCRA was enacted on March 18, 2020. It requires group health plans to provide benefits for certain items and services related to diagnostic testing for COVID-19 when those services are furnished during the COVID-19 public health emergency period beginning on March 18, 2020. The FFCRA requires plan issuers to offer this coverage without any cost-sharing (e.g., deductibles, copayments, or coinsurance), prior authorization, or other administrative plan requirements. The CARES Act was enacted on March 27, 2020. It amends and broadens the scope of the FFCRA’s provisions relating to COVID-19 testing. The CARES Act requires plans to cover the testing whether it is provided by an in- or out-of-network provider and mandates that servicers list the service cost for testing on a public website. Guidance regarding the laws and regulations explains that their purpose is to expand the availability of medically-necessary testing and treatment by reducing the cost of such items to insured individuals.
The laws and implementing regulations also mandate that non-grandfathered GHPs and insurers cover qualifying coronavirus preventive services.
The CARES Act and accompanying agency regulations require GHPs to cover coronavirus vaccinations and other preventive measures as preventive services without cost-sharing and on an expedited basis. Preventive service coverage includes vaccines granted emergency use authorization (EUA) by the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practice (Advisory Committee). To date, the CDC Advisory Committee has given EUA to three different vaccines.
The FAQs Part 44 further clarify how plans must cover COVID-19 testing and vaccinations.
FAQs Part 44 is the latest guidance that the Agencies released, offering direction to GHPs to cover coronavirus testing and vaccinations. The FAQs consist of 14 questions and answers (Q&As) that provide additional clarification about how coverage operates when a plan participant receives a COVID-19 test or vaccine. Most of the Q&As build on the previous FAQs (Part 42 and 43) relating to FFCRA, CARES Act and the Agencies’ COVID-19 implementing regulations. These latest FAQs clarify the regulatory requirements in light of the latest issues and questions raised by stakeholders. Below is a summary of some of the Q&As and the guidance most relevant to health plans. Q&A14 is not discussed in this article because it is most relevant to healthcare providers. It addresses how healthcare providers can receive reimbursement from the provider relief fund for services provided to uninsured persons. Those interested can read the full guidance found in FAQs Part 44.
The first set of Q&As provide GHPs with answers to general and specific questions about what FFCRA and CARES require in terms of COVID-19 testing coverage.
Q&A1 reiterates and confirms that GHPs cannot use medical-screening criteria to deny or impose cost-sharing on claims for COVID-19 testing. It also states that a plan cannot impose as a coverage requirement that a participant exhibits symptoms or has a recent known or suspected exposure to COVID-19.
Q&A2 explains that GHPs are not required to give first-dollar coverage to testing for public health surveillance or employment purposes. This answer encourages plans to clearly communicate the circumstances in which the plan will cover testing.
Q&A3 and Q&A4 detail that GHPs must cover testing provided through state- or locally-administered testing sites, including drive-through sites, and that they do not require appointments. Q&A3 and Q&A4 also clarify that point-of-care tests, commonly referred to as rapid testing, must be covered on the same basis as other COVID-19 tests.
Q&A5 reiterates that plans must cover items and services provided during the course of testing and diagnosis of COVID-19, such as physician-prescribed tests for other respiratory diseases in order to rule out COVID-19, without any cost-sharing. Plans must cover in- and out-of-network testing without any cost-sharing. Plans can negotiate the price they will pay an out-of-network provider for testing cost or pay the posted price of testing and services.
Q&A6 encourages GHPs to report testing providers that violate the requirement to post their cash prices for diagnostic tests or act contrary to other similar regulatory requirements of the FFCRA, CARES and the American Rescue Plan Act of 2021 (ARPA).
The second set of Q&As provide GHPs with answers to questions about what non-grandfathered GHPs must cover in terms of COVID-19 vaccines and other preventive services.
Q&A7 reiterates that GHPs must cover all recommended COVID-19 vaccines as a preventive service, including those receiving EUA from the CDC Advisory Committee. Q&A7 builds on the meaning of covering COVID-19 related items and services without cost-sharing and explains that plans must cover these services both in-network and out-of-network. Plans must cover the services at the posted service price or a negotiated rate that will apply throughout the public health emergency (PHE) declaration period.
Q&A8 and Q&A9 remind plans that they must cover recommended COVID-19 vaccines no later than 15 business days after a vaccine receives its applicable recommendation. The answers state that plans must cover the vaccine administration cost regardless of the administrator or whether the federal government or another third party pays for the vaccine itself. Plans must also cover these costs even when the vaccine requires the administration of multiple doses.
Q&A10 explains that a GHP cannot deny vaccine coverage merely because a participant did not meet their state’s or locality’s current vaccination priority criteria when they received their vaccination. Further, Q&A10 states that an individual’s provider’s decision not to administer the vaccine because the individual is not in a prioritization category is not an adverse benefit determination subject to the plan’s claims and appeals requirements.
Q&A11 provides further guidance on the requirement to provide a minimum 60-day advance notice before making material modifications to the plan’s Summary of Benefits and Coverage.
The rules require a plan to provide at least 60 days’ notice to plan participants prior to making any material modifications to the Summary of Benefits and Coverage (SBC). Q&A11 builds on the suspension of this requirement first addressed in FAQ Part 42. That previous guidance said that GHPs must provide notice of material modifications to the SBC relating to telehealth/teleservices as soon as reasonably practicable. Q&A11 extends the reasonably practicable standard to the addition of coverage for qualifying coronavirus preventive services.
Q&A12 and Q&A13 answer and expand on answers to previous questions about excepted benefits, like employee assistance plans (EAP) and onsite medical clinics.
Excepted benefits are a category of benefits exempted from the Public Service Health Act section of the Employee Retirement Income Security Act (ERISA) because they are not considered health coverage according to the statute. Q&A12 builds on the previous answers (11 and 12) in FAQs Part 42 about EAPs’ and onsite clinics’ excepted benefit status. FAQs Part 42 Q&A11 states that an EAP that qualifies as an excepted benefit can maintain its status if it provides coverage for COVID-19 diagnostics and testing during the PHE. FAQs Part 42 Q&A12 explains that an onsite clinic remains an excepted benefit even if it offers COVID-19 testing and diagnosis because an onsite clinic is always an excepted benefit. FAQs Part 44 Q&A12 and Q&A13 build on that previous guidance by including coverage of COVID-19 vaccines and their administration during the PHE as services that will not disrupt the excepted benefit status of an EAP or an onsite medical clinic.
Employers, plan sponsors and plan administrators should review FAQs Part 44 in its entirety. Before making any plan changes, employers, plan sponsors, and plan administrators should seek the advice of their legal counsel.
EPIC offers this material for general information only. EPIC does not intend this material to be, nor may any person receiving this information construe or rely on this material as, tax or legal advice. The matters addressed in this document and any related discussions or correspondence should be reviewed and discussed with legal counsel prior to acting or relying on these materials.
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Compliance Manager – Atlanta, GA