(Source: Information Provided by Associated Benefits Consulting’s Attorney
Chip Kerby of The Liberte’ Group)
The DOL, IRS and HHS recently issued another set of FAQs (Part 43) providing further details on the COVID-19 testing mandate. Like the Part 42 FAQs issued in April, the Part 43 FAQs discuss the requirements of section 6001 of the Families First Coronavirus Response Act (FFCRA), as amended by section 3201 of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act). These laws require group health plans to cover COVID-19 diagnostic tests and related provider charges without cost-sharing or other restrictions. The link to the entire 18 pages (and 39 footnotes), is here –
The “cliff notes” version is below (shorter, more-to-the-point answers).
Footnote 6 – The agencies drop a very important clarification in footnote 6. The law requires group health plans to cover COVID-19 tests without cost-sharing or “other restrictions.” Footnote 6 says that the prohibited “other restrictions” include a medical necessity review. What this seems to mean is that the COVID-19 testing mandate essentially overrides a fundamental requirement in almost every group health plan; namely, the requirement that a covered service must be medically necessary.
#1 - Are self-insured group health plans required to comply with the requirements of section 6001 of the FFCRA?
#2 - How can a plan or issuer determine which COVID-19 tests are required to be covered under section 6001(a)(1) of the FFCRA?
The law requires COVID-19 tests to be covered without cost sharing if the tests fall into any one of four buckets:
· Bucket A – Tests that the FDA has approved, cleared or authorized (including emergency use authorizations). The agencies tell us that, to date, no COVID-19 tests have been fully approved or cleared by the FDA. The COVID-19 tests that have received emergency use authorization from the FDA are listed here: https://www.fda.gov/medical-devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-devices/vitro-diagnostics-euas
· Bucket B – Tests for which a developer has requested, or intends to request, an emergency use authorization from the FDA (and which hasn’t been denied or withdrawn). The agencies say the FDA will post the names of these entities on the FDA’s website at https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-testing-sars-cov-2#offeringtests . The agencies also say that group health plans and their administrators can ask a clinical laboratory or manufacturer to provide documentation of an emergency use authorization request, and asking for this documentation doesn’t violate the prohibition on “other restrictions.”
· Bucket C – Tests that are developed in and authorized by States that have notified HHS that they intend to review the tests. The agencies say the States that have provided this notice to FDA are listed here:https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-testing-sars-cov-2#offeringtests . As I write this, the listed States include Connecticut, Maryland, Mississippi, Nevada, New Jersey, New York and Washington.
· Bucket D – Tests that HHS has determined to be appropriate. The agencies say there are no such tests at this time.
#3 - In FAQs Part 42, the Departments clarified that coverage for certain items and services must be provided consistent with the requirements of section 6001 of the FFCRA “when medically appropriate for the individual, as determined by the individual’s attending health care provider.” How should plans and issuers determine if a provider is the attending health care provider?
#4 - Are plans and issuers required to cover COVID-19 tests intended for at-home testing under section 6001 of the FFCRA?
#5 - Is COVID-19 testing for surveillance or employment purposes required to be covered under section 6001 of the FFCRA?
#6 - If an individual receives multiple diagnostic tests for COVID-19, are plans and issuers required to cover each test, as well as other applicable items and services?
#7 - If a facility fee is charged for a visit that results in an order for or administration of a COVID-19 diagnostic test, must the plan or issuer also cover the facility fee without imposing cost-sharing requirements?
#8 - Do the reimbursement requirements of section 3202(a) of the CARES Act apply to any items and services other than diagnostic testing for COVID-19?
#9 - Does section 3202 of the CARES Act protect participants, beneficiaries, and enrollees from balance billing for a COVID-19 diagnostic test?
#10 - How do the requirements of section 3202(a)(2) of the CARES Act interact with state balance billing laws regarding reimbursement for items and services furnished by out-of-network providers or providers that do not have a negotiated rate with a plan or issuer for COVID-19 tests?
#11 - How should plans and issuers determine a reimbursement rate for providers of COVID-19 testing if they do not have a negotiated rate with the provider and the provider has not made available on a public internet website the cash price of a COVID-19 diagnostic test, as required by section 3202(b) of the CARES Act?
#12 - If an individual receives a COVID-19 test in an emergency department of a hospital that is out-of-network, how do the requirements of section 3202(a) of the CARES Act interact with PHS Act section 2719A?
#13 - In FAQs Part 42, the Departments announced temporary enforcement relief that allows plans and issuers to make changes to coverage to increase benefits, or reduce or eliminate cost sharing, for the diagnosis and treatment of COVID-19 or for telehealth and other remote care services more quickly than they would otherwise be able to under current law. May a plan or issuer also revoke these changes upon the expiration of the public health emergency related to COVID-19 without satisfying advance notice requirements?
#14 - In light of the COVID-19 pandemic, may a large employer offer coverage only for telehealth and other remote care services to employees who are not eligible for any other group health plan offered by the employer?
#15 - If a grandfathered group health plan or issuer of grandfathered group or individual health insurance coverage adds benefits, or reduces or eliminates cost-sharing requirements, for the diagnosis and treatment of COVID-19 or for telehealth and other remote care services during the public health or national emergency period related to COVID-19, will the plan or coverage lose its grandfather status solely because it later reverses these changes upon the expiration of the COVID-19 emergency period?
#16 - When performing the “substantially all” and “predominant” tests for financial requirements and quantitative treatment limitations under the MHPAEA regulations, may plans and issuers disregard benefits for items and services required to be covered without cost sharing under section 6001 of the FFCRA?
#17 - 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?
#18 - What are the potential consequences of delaying the individual coverage HRA notice to the extent permitted by EBSA Notice 2020-01?
Liberté Group LLC
1101 Pennsylvania Avenue NW, Suite 300
Washington, DC 20004
Chip is an attorney and the founder of Liberté Group LLC, a Washington, DC firm specializing in federal laws affecting the design and administration of ERISA health and welfare benefit plans. The firm works with plan sponsors, service providers, law firms and consulting groups, focusing on plan documentation, compliance issues, vendor contracts and legislative/regulatory developments. With over 40 years of experience, Chip’s approach to problem solving is collaborative and solution-based.
Chip’s prior experience in Washington includes stints as a partner with McDermott, Will & Emery, a principal in Mercer’s Washington Resource Group, a senior manager at PriceWaterhouse, an associate at Miller & Chevalier and an assistant branch chief and attorney-advisor in the Chief Counsel’s office of the IRS.
Chip is admitted to practice in the District of Columbia. He served as an adjunct professor at Georgetown University Law Center co-teaching a graduate LLM course entitled “Health and Welfare Benefit Plans; Tax and ERISA Aspects.” Chip is a fellow of the American College of Employee Benefits Counsel, and speaks and writes on employee benefit issues.
- Georgetown University Law Center, L.L.M. in Taxation, 1983
- Washington and Lee University School of Law, J.D., cum laude, 1978
- University of Delaware, B.A., magna cum laude, 1975