The Department of Labor, the Department of Health and Human Services and the Department of the Treasury (the Departments) have jointly issued a new set of Frequently Asked Questions (FAQ #43) to provide additional guidance regarding the implementation of the Families First Coronavirus Response Act (the FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), and other issues related to COVID-19 health coverage.
The FFCRA requires group health plans and health insurers offering group or individual health insurance coverage to provide benefits for certain items and services related to testing for the detection and diagnosis of COVID-19 without cost sharing, prior authorization or other medical management requirements when those items or services are furnished on or after March 18, 2020, and during the applicable emergency period.
The CARES Act amended the FFCRA to include a broader range of diagnostic items and services that plans and issuers must cover. It also requires providers of diagnostic tests for COVID-19 to make public the cash price of a COVID-19 diagnostic test on the provider’s public internet website or face potential enforcement action including civil monetary penalties.
A number of questions that have arisen regarding the Acts are addressed in these new FAQs. Notable among them are:
How can a plan or issuer determine which COVID-19 tests are required to be covered under the FFCRA?
The Departments clarify that covered tests are those (a) that are approved, cleared, or authorized under the Federal Food, Drug, and Cosmetic Act; (b) where the developer has requested, or intends to request, emergency use authorization under the Food, Drug, and Cosmetic Act; (c) that have been developed in, and authorized, by a State that has notified HHS of its intention to review tests intended to diagnose COVID-19; and (d) that the Secretary of HHS determines are appropriate.
Is COVID-19 testing for surveillance or employment purposes required to be covered under the FFCRA?
The FAQs explain that “Testing conducted to screen for general workplace health and safety (such as employee “return to work” programs), for public health surveillance, or for any other purpose not primarily intended for individualized diagnosis or treatment of COVID-19 or another health condition is beyond the scope of FFCRA.”
May a plan or issuer revoke changes related to the Acts upon the expiration of the public health emergency without satisfying advance notice requirements?
FAQs #43 state that advance notification requirements will not apply if a plan or issuer reverses the modifications once the COVID-19 public health emergency or national emergency declaration is no longer in effect, as long as the plan or issuer had previously notified participants, beneficiaries, or enrollees of the general duration of the additional benefits coverage, and notification is given within a reasonable time in advance of the reversal of the modifications.
When performing the tests required under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) to ensure that the financial requirements and visit limits imposed on mental health or substance use disorder benefits are not more restrictive than those for medical/surgical benefits, may plans and issuers disregard benefits for items and services required to be covered without cost sharing under the FFCRA?
The FAQs clarify that, in general, the required coverages under the FFCRA will not be taken into account in determining compliance with the MHPAEA.
May a plan or issuer waive a standard for obtaining a reward (including any reasonable alternative standard) under a health-contingent wellness program if participants or beneficiaries are facing difficulty in meeting the standard as a result of circumstances related to COVID-19?
Yes. The Departments state that plans and issuers are permitted to waive a standard (including a reasonable alternative standard) for obtaining a reward under a health-contingent wellness program. However, to the extent the plan or issuer waives a wellness program standard as a result of the COVID-19 public health emergency, the waiver must be offered to all similarly situated individuals.
These FAQs also address the requirement that employees who are offered an Individual Coverage Health Reimbursement Arrangement (ICHRA) be provided with a notice, generally at least 90 days before the start of the plan year, that includes information about requirements and the terms of the ICHRA, and certain consequences of accepting or not accepting the ICHRA coverage. This requirement has been waived during the emergency period. However, the Agencies “encourage employers affected by the COVID-19 pandemic to consider whether they can provide the 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, and to make an informed decision whether or not to enroll in the individual coverage.”
Other topics discussed in the FAQs include balance billing, telehealth and remote care services, as well as additional information on covered testing.
The FAQs can be found at: https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-43.pdf