On July 23, 2020, the Secretary of the Department of Health and Human Services ("HHS") issued another 90-day extension regarding free COVID-19 testing. The free COVID-19 testing requirement was set to expire on July 25, but will continue through October 23 unless it is again extended.

On June 23, 2020, the Department of Labor, HHS, and the Department of Treasury (collectively the "Departments") issued FAQs About Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Act Implementation Part 43 ("FAQ 43") to further clarify the requirements under the Families First Coronavirus Response Act ("FFCRA") and the Coronavirus Aid, Relief and Economic Security Act ("CARES Act"). This SW Benefits Update provides a summary of the key clarifications made by FAQ 43.

In April, the Departments issued an initial set of FAQs regarding the COVID-19 health coverage requirements ("FAQ 42"). For more information about FAQ 42, see our SW Benefits Update, "Asked and Answered: Agencies Issue FAQs on COVID-19 Requirements for Group Health Plans."

Now that the free COVID-19 testing rules are here to stay for another 90 days, and there has been an explosion in COVID-19 testing across the country, employers should consider giving a detailed COVID-19 testing notice to plan participants explaining what is free of charge and what is not, using FAQs 42 and 43 as a roadmap.

CLARIFICATIONS REGARDING REQUIRED COVERAGE OF COVID-19 TESTING

First, FAQ 43 brings clarity to various aspects of the COVID-19 coverage requirements and cost-sharing restrictions under FFCRA and CARES Act.

• FDA Website Lists Required Tests. FFCRA requires plans to cover certain COVID-19 tests without cost-sharing, including but not limited to: (1) certain tests approved under the Federal Food, Drug, and Cosmetic Act ("FFDCA"), and (2) certain tests for which a developer has requested, or intends to request, emergency use authorization under FFDCA. Q&A-2 of FAQ 43 points out that the Food and Drug Administration ("FDA") website lists the COVID-19 tests that have received emergency use authorization under the FFDCA (thus required to be covered under (1) above), and lists laboratories and manufacturers that notify the FDA that they have validated certain COVID-19 tests, which the Departments say must be covered under (2) above.
• Identifying Attending Health Care Providers. Q&A-3 of FAQ 43 provides guidance for determining whether a given provider is an individual’s attending health care provider for purposes of Section 6001 of FFCRA. Echoing FAQ 42, the Departments describe an attending provider as an individual who is licensed or authorized under applicable law, acting within the scope of the provider’s license or authorization, and responsible for providing care to the patient. The Departments also make clear that an attending provider need not be directly responsible for providing care to a patient, as long as the provider makes an individualized clinical assessment to determine whether the test is medically appropriate for the patient in accordance with current accepted standards of medical practice.
• Coverage Required for At-Home Testing. Q&A-4 of FAQ 43 clarifies that FFCRA free testing coverage requirements include at-home COVID-19 testing when the test is ordered by an attending health care provider who determines the test is medically appropriate, and the test meets the other statutory requirements of Section 6001(a)(1) of FFCRA.
• Coverage Not Required for Return-to-Work Testing. Q&A-5 of FAQ 43 explains that Section 6001 of FFCRA does not require plans to cover COVID-19 testing conducted for workplace health or safety, public health surveillance, or other purposes not primarily intended for COVID-19 diagnosis or treatment. Thus, if an employer requires employees to be tested for COVID-19 prior to returning to work, the employer’s health plan is not required to cover the tests. To avoid confusion over unexpected costs, employers implementing return-to-work testing requirements should consider informing employees as to whether the plan covers return-to-work testing and whether such testing is otherwise free of charge.
• Coverage Required for Multiple Tests. Q&A-6 of FAQ 43 clarifies that plans are required to cover multiple tests (and related items and services) without cost-sharing for an individual, as long as the tests are diagnostic and medically appropriate for the individual as determined by an attending health care provider.
• Required Coverage Includes Facility Fees. Q&A-7 of FAQ 43 clarifies that plans must cover, without cost-sharing, facility fees for a visit that results in an order for, or administration of, a COVID-19 diagnostic test if the facility fee relates to the furnishing or administration of a COVID-19 test or to the evaluation of an individual to determine the individual’s need for testing. To highlight this rule, the Departments provide the following example: "if an individual is treated in the emergency room and the attending provider orders a number of services to determine whether a COVID-19 diagnostic test is appropriate, such as diagnostic test panels for influenza A and B and respiratory syncytial virus, as well as a chest x-ray, and ultimately orders a COVID-19 test, the plan or issuer must cover those related items and services without cost sharing, prior authorization, or other medical management requirements, including any physician fee charged to read the x-ray and any facility fee assessed in relation to those items and services."
• Balance Billing. Q&A-9 of FAQ 43 explains that the Departments read the requirement to provide COVID-19 testing without cost-sharing under FFCRA and CARES Act to prevent balance billing for applicable COVID-19 tests. Q&A-10 of FAQ 43 provides clarification regarding the interaction of the CARES Act and state balance billing laws.
• Costs of Out-of-Network Emergency Services. Q&A-12 of FAQ 43 clarifies that the requirements of CARES Act Section 3202(a), regarding required COVID-19 diagnostic tests that are out-of-network emergency services, supersede the minimum payment standards required by the regulations under Section 2719A of the Public Health Service Act. The Departments provide that plans must reimburse the out-of-network provider of required COVID-19 testing either the cash price for such service, as listed by the provider on a public website, or a lower negotiated rate.
• Relief from Mental Health Parity and Addition Equity Act of 2008 ("MHPAEA"). In Q&A-16 of FAQ 43, the Departments provide temporary MHPAEA enforcement relief so plans can disregard the items and services required to be covered under FFCRA for purposes of determining whether a financial requirement or quantitative treatment limitation (1) applies to "substantially all" medical/surgical benefits in a classification, or (2) is more restrictive than the "predominant" level applicable to medical/surgical benefits, under the MHPAEA.

RELIEF FOR REVERSING BENEFITS AFTER THE COVID-19 EMERGENCY PERIOD

Additionally, FAQ 43 provides limited relief for employers that want to reverse added COVID-19 benefits when the emergency period ends.

• Relief from Summary of Benefits and Coverage ("SBC") Notice Requirements. As discussed in our SW Benefits Update, "Asked and Answered: Agencies Issue FAQs on COVID-19 Requirements for Group Health Plans," FAQ 42 provided temporary relief from the requirement to provide notice of a material modifications no later than 60 days before the modification effective date if the modification affects the content of a plan’s SBC. The relief was limited to changes that (1) provide greater coverage related to the diagnosis or treatment of COVID-19, and/or (2) add, or reduce cost-sharing for, telehealth or remote care benefits. Q&A-13 of FAQ 43 expands the relief to include the reversal of these added benefits once the COVID-19 public health emergency or national emergency declaration is no longer in effect. The Departments will not enforce the notice requirement for such reversal if (1) the plan previously provided notification of the general duration of the change, or (2) the plan provides notice of the general duration of the change within a reasonable timeframe in advance of the reversal. If employers plan to reverse their added benefits after the COVID-19 emergency, they should consider whether their existing notification will suffice or whether a new advance notice must be distributed.
• Grandfathered Status Protection. If a grandfathered group health plan adds benefits or reduces or eliminates cost sharing for the COVID-19 emergency period, as allowed under Q&A-9 and Q&A-14 of FAQ 42, Q&A-15 of FAQ 43 provides that the plan will not lose its grandfather status solely because such changes are later reversed.

OTHER RELIEF INCREASING ACCESS TO HEALTHCARE DURING COVID-19

Next, FAQ 43 provides relief that will expand the number of individuals eligible to receive telehealth and wellness benefits.

• Telehealth and Other Remote Care Services for Employees Ineligible for Group Health Plans. Under Q&A-14 of FAQ 43, the Departments provide temporary relief from certain group health plan requirements (e.g., the preventive services mandate) if a plan: (1) is sponsored by a large employer, (2) solely provides telehealth or certain remote care services, and (3) is only offered to employees (or their dependents) who are not eligible for coverage under any of the employer’s other group health plans. However, certain non-discrimination rules still apply, such as the prohibition of preexisting condition exclusions or discrimination based on health status. This relief only applies for plan years beginning before the end of the COVID-19 public health emergency.
• Wellness Program Eligibility Waivers. Q&A-17 of FAQ 43 allows employers to waive their standards (including reasonable alternative standards) for obtaining rewards under a health-contingent wellness program due to the COVID-19 emergency if the waiver is offered to all similarly situated individuals.

INDIVIDUAL COVERAGE HEALTH REIMBURSEMENT ARRANGEMENTS

Finally, FAQ 43 warns employers against relying on the deadline relief in Notice 2020-01 for individual coverage HRA notices. To learn more about individual coverage HRAs, see our SW Benefits Update, "Zombie Benefits Part II: Health Reimbursement Arrangements ("HRAs") Are Back From the Dead."

• Delaying ICHRA Notices. FAQ 43 acknowledges that Notice 2020-01 allows employers to furnish an individual coverage HRA notice as soon as administratively practicable under the circumstances, rather than furnishing the notice 90 days in advance of the plan year or when otherwise required. However, Q&A-18 of FAQ 43 warns that employers may want to ensure individuals receive their "individual coverage HRA notice at least early enough in advance of the first day on which the individual coverage HRA may take effect so that eligible employees have sufficient time to read and understand the notice, make an informed decision whether or not to enroll in the individual HRA, and exercise their special enrollment right to individual health insurance coverage so that the coverage would start no later than the first day of the individual coverage HRA plan year."

CONCLUSION

With FAQ 43, the Departments once again add to the ongoing challenge for employers to keep up with the wave of 2020 guidance. Employers need to consider how to amend their plans to reflect this guidance and timely notify participants regarding these important clarifications.