The exact scope of the health coverage mandate for COVID-testing was clarified in a new round of regulatory guidance from the U.S. Department of Labor (DOL). The frequently asked questions (FAQs) also address notice requirements, telehealth coverage, and the interaction of COVID-19 emergency relief with existing benefits laws.
These “Part 43” FAQs, which the DOL developed jointly with the U.S. Departments of Health and Human Services and the Treasury, address the coverage requirements of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
FFCRA Section 6001 requires group health plans and health insurers to cover COVID-19 testing services on a first-dollar basis, and CARES Act Section 3201 broadened this mandate. The first round of guidance on these provisions was released in April.
‘Diagnostic’ vs. ‘Screening’ Tests
Of note for employers, one of the FAQs distinguishes between “diagnostic” COVID-19 tests and “screening” tests taken for return-to-work or public health purposes.
“Section 6001 of the FFCRA requires coverage of items and services only for diagnostic purposes” based on an individual’s COVID-19 symptoms or recent exposure, the DOL stated. This does not include “testing conducted to screen for general workplace health and safety (such as employee ‘return to work’ programs), for public health surveillance for SARS-CoV-2, or for any other purpose not primarily intended for individualized diagnosis or treatment.”
Other federal state laws might still require employers to cover the cost of these tests, even if the cost cannot be passed along to the health plan, observed Seyfarth Shaw attorneys in a blog post.
Other Testing Considerations
The DOL previously stated that the coverage mandate applies to COVID-19 tests deemed medically appropriate by an “attending health care provider.” The new guidance clarifies that “a health care provider need not be ‘directly’ responsible for providing care to the patient to be considered an attending provider, as long as the provider makes an individualized clinical assessment” as to whether the test is medically appropriate.
Such a provider will qualify as “attending” if they are licensed (or otherwise authorized) under applicable law, acting within the scope of that license (or authorization), and responsible for providing care to the patient. Even at-home tests must be covered “when the test is ordered by an attending health care provider who has determined that the test is medically appropriate.”
The guidance also clarified the necessary approval status for the tests themselves. A COVID-19 test need not actually have been approved by the Food and Drug Administration (FDA) if the developer has requested, or intends to request, emergency use authorization (EUA).
A health plan “may take reasonable steps to verify that a test offered by a developer meets the statutory criteria”—for example, by asking the laboratory or manufacturer for a copy of the EUA request.
The mandate for first-dollar coverage includes multiple tests on one individual, as well as any facility fee that “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,” the DOL continued. “For 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,” the plan must cover these related items and fees if a test is ultimately ordered.
Reimbursement Rates
The guidance fleshed out the CARES Act requirements for reimbursing out-of-network services, and clarified that these provisions only apply to COVID-19 testing.
In other words, a health plan “may apply its regular repricing/reimbursement methodology for any other service provided in the nonnetwork setting,” Seyfarth noted. So if a plan typically pays a percentage of Medicare or another “usual, customary, and reasonable” rate for nonnetwork services, “that repricing process should be able to be applied to any non-network services received other than the actual charge for the COVID test itself.”
For health plans not grandfathered under the Affordable Care Act (ACA), that law’s requirements for reimbursing non-network emergency services would still apply.
Notice Requirements
The FFCRA and CARES Act coverage requirements only apply until the end of the declared COVID-19 emergency. One of the new FAQs clarified the notice requirements for a plan that revokes these special coverage provisions when the emergency expires. The DOL will consider the plan to have met the advance notice requirements for modifying a Summary of Benefits and Coverage (SBC) if the plan either:
- Previously notified the participant, beneficiary, or enrollee of the general duration of the additional benefits coverage or reduced cost-sharing; or
- Notifies this individual of the general duration of the additional benefits coverage or reduced cost-sharing within a reasonable timeframe in advance of the reversal of the changes.
“Presumably, this means that if the original notice indicated that the plan would only cover cost-free testing during the emergency period, a subsequent notice wouldn’t be required,” the Seyfarth attorneys indicated.
Stand-Alone Telehealth
A large employer may offer stand-alone telehealth coverage to employees who are not eligible for any other group health plan that the employer offers, according to the guidance. Such a plan will be exempt from many of the DOL’s “market reform” requirements, except the provisions on pre-existing conditions, nondiscrimination, rescissions, and mental health parity.
Other Benefits Laws
The DOL also clarified that allowing COVID-19 testing without cost-sharing will not upset a plan’s parity calculations under the Mental Health Parity and Addiction Equity Act, and a plan may waive wellness program standards during the emergency as long as it does so for all similarly situated individuals.
David A. Slaughter, JD, is a Senior Legal Content Specialist. He focuses on providing, editing, and updating content related to employee benefits and privacy compliance, including the Thompson HR benefits products. Before coming to BLR, he was an employee benefits compliance editor with Thompson Information Services.
Mr. Slaughter received his law degree from the University of Virginia and his B.A. from Dartmouth College. He is an associate member of the Virginia State Bar.
Questions? Comments? Contact David at dslaughter@blr.com for more information on this topic.