July 15, 2020

*As of July 15, 2020

On March 18, 2020, the President signed into law the Families First Coronavirus Response Act, which requires, among other things, that group health plans cover COVID-19 testing and related provider visits with no out-of-pocket costs. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted March 27, 2020, and later agency FAQs and guidance provided more implementation guidance. We provide an overview of the provisions most relevant to large employers below.

COVID-19 Testing: No Out-of-Pocket Costs

Effective March 18, 2020, all group health plans—insured and self-insured—must cover COVID-19 testing without cost-sharing (no deductibles, copayments, coinsurance) and without prior authorization or other medical management requirements. Specifically:

Coverage includes items and services furnished during office, telehealth, urgent care, and emergency room visits, provided the items/services are related to the furnishing or administration of testing or evaluation to determine the need for testing.
Covered testing includes all FDA-approved COVID-19 testing and tests: (1) for which the developer has requested or intends to request emergency use authorization from the FDA, (2) developed in or authorized by a state, and (3) deemed appropriate by HHS.
Tests that must be covered are listed at the following sites:

Plans must reimburse testing providers the negotiated rate that was in effect before the COVID-19 public health emergency.
If a plan did not have a negotiated rate, the plan must reimburse at a cash price that the CARES Act requires providers to publish. Plans also have the option of negotiating a price lower than the cash price.
The above reimbursement rules supersede other rules setting reimbursement for out-of-network emergency services. Therefore, the above-mentioned reimbursement rates apply to tests administered in an out-of-network emergency setting.

FAQs from the Department of Health and Human Services (HHS), Department of Labor (DOL), and the Internal Revenue Service (IRS) provide additional details:

The testing coverage requirements are effective through the COVID-19 public health emergency. Currently, the public health emergency is set to expire on 7/25/2020, although HHS may extend this period.
If a group health plan reverses these coverage provisions after the public health emergency expires, the plan must provide advance notice to participants within a reasonable timeframe. As an alternative, the plan can provide advance notice that additional benefits or reduced cost sharing due to COVID-19 extend only for the duration of the public health emergency.
Required testing coverage does not include testing for general workplace health and safety (such as return to work programs), for public health surveillance, or for any purpose not primarily intended for individualized diagnosis or treatment of COVID-19 or another health condition.
In most cases, the law precludes balance billing for COVID-19 testing; payment by a group health plan or health insurer should be considered payment in full.
Coverage must include in- and out-of-network providers.
Coverage must extend to non-traditional care settings, including drive-through screening/testing sites where licensed providers are administering COVID-19 testing.
Coverage includes items or services related to the furnishing or administration of a test or to evaluation of an individual to determine the need for a test, as determined by the attending healthcare provider.

Note: An attending provider must be acting within the scope of their license and responsible for providing care to the patient but does not need to be directly responsible for providing care to a patient.

Coverage must include at-home testing, including tests where the individual performs self-collection of a specimen, provided the test is ordered by an attending provider who has determined the test is medically appropriate.
Coverage must extend to multiple tests, provided those tests are diagnostic and medically appropriate, as determined by an attending health care provider.
Coverage must include any facility fee for a visit that results in an order for a COVID-19 test.
If a provider determines that other tests (e.g., influenza, blood tests) are needed to determine the need for COVID-19 testing and the visit results in an order for or administration of a COVID-19 test, the plan must cover the COVID-19 test and related tests.
Required testing coverage also includes serological tests used to detect antibodies. Currently, there is only one emergency use authorization for this type of test, and the test is not recommended by the FDA as the sole basis for COVID-19 diagnosis.
For purposes of the financial requirements and quantitative treatment limitations of the Mental Health Parity and Addiction Equity Act (MHPAEA), plans can disregard the items and services related to COVID-19 testing that must be covered without cost sharing.
For any plan year beginning before the end of the COVID-19 public health emergency, an employer can offer telehealth or other remote care services to employees (and dependents) who are not eligible for coverage under another group health plan sponsored by the employer.
Employee assistance programs (EAPs) can cover benefits for COVID-19 diagnosis and testing during the COVID-19 public health emergency and still be considered HIPAA excepted benefits. This guidance creates a path for employers to offer testing benefits to employees who are not enrolled in the employer’s group health plan.
Onsite clinics can offer COVID-19 diagnosis and testing and still be considered HIPAA excepted benefits. This guidance creates another path for employers to offer testing benefits to employees who are not enrolled in the employer’s group health plan.
Employers should provide notice to plan participants of additional testing benefits and cost sharing changes as soon as reasonably practicable. However, agencies will not take enforcement action if employers do not provide the 60 days advance notice that is usually required.

In addition, the IRS has provided guidance for HSAs paired with HDHPs. Specifically:

HSA/HDHPs can cover COVID-19 testing and treatment before participants satisfy their deductibles.
HSA/HDHPs can provide pre-deductible coverage for all testing-related items and services detailed above on or after 1/1/2020 (IRS Notice 2020-29).
Vaccinations continue to be considered “preventive” under the HSA rules. Therefore, if a COVID-19 vaccine becomes available, HSA/HDHPs will be able to provide pre-deductible coverage.

We recommend that employers:

Discuss with their third-party administrators and other vendors (1) how their group health plans will implement this coverage, including any payment, coding, and billing changes that may be needed; (2) how to handle in- and out-of-network coverage for testing; (3) future testing options; and (4) testing coverage after the public health emergency ends.
Determine how to communicate coverage changes to participants;
Amend plan documents and SPDs, as necessary; and
Amend provider agreements, if necessary.

What happens next?

We expect that the Department of Health and Human Services, Department of Labor, and Internal Revenue Service will continue to issue guidance. The Business Group will provide updates as this guidance becomes available.

Resources

Do you have regulatory/compliance questions related to COVID-19? Please contact us.

Update on COVID-19 Testing Coverage

COVID-19 Testing: No Out-of-Pocket Costs

What happens next?

Resources

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