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Additional FAQs issued on FFCRA and CARES Act

Benefits Administration and Outsourcing Solutions|Health and Benefits|Total Rewards
COVID 19 Coronavirus

By Maureen Gammon and Kathleen Rosenow | March 18, 2021

The FAQs cover the diagnostic testing and preventive services mandates as well as group health plan notice requirements.

The Departments of Labor, Health and Human Services, and Treasury have released new frequently asked questions (FAQs Part 44) on the implementation of the Families First Coronavirus Response Act (FFCRA); the Coronavirus Aid, Relief, and Economic Security (CARES) Act; and other health coverage issues related to COVID-19. These laws require group health plans to provide benefits for certain items and services related to diagnostic testing for COVID-19 and — for group health plans that do not have grandfathered status under the Affordable Care Act1 — qualifying COVID-19 preventive services (including certain vaccines), without any cost sharing, prior authorization or other medical management requirements. The guidance is effective immediately.

The FAQs specifically cover the following COVID-19 related issues: (1) the diagnostic testing mandate in the FFCRA and the CARES Act, (2) the preventive services mandate in the CARES Act (including whether an employee assistance program [EAP] or onsite clinic can maintain excepted benefit status if the entity provides COVID-19 preventive services), and (3) group health plan notice requirements. Each issue is discussed in detail below.

This is the third set of FAQs the departments have issued to provide guidance on implementing the FFCRA and CARES Act and other COVID-19-related health coverage issues.2

Diagnostic testing

The new FAQs clarify several provisions in the FFCRA and the CARES Act regarding the COVID-19 testing mandate:

  • Plans cannot use medical screening criteria to deny (or impose cost sharing on) a claim for COVID-19 diagnostic testing for an asymptomatic person who has no known or suspected exposure to COVID-19. When an individual seeks and receives a COVID-19 diagnostic test from a licensed or authorized health care provider, or when such provider refers an individual for a COVID-19 diagnostic test, plans generally must provide coverage for the test without cost sharing, prior authorization or other medical management requirements. This means that asymptomatic individuals, without a doctor referral or diagnosis, can receive COVID-19 testing with no cost sharing.
  • Plans may distinguish between COVID-19 diagnostic testing of asymptomatic people that must be covered and testing for general workplace health and safety, for public health surveillance, or for other purposes not primarily intended for individualized diagnosis or treatment of COVID-19. Plans must provide coverage without cost sharing, prior authorization or other medical management requirements for COVID-19 diagnostic testing of asymptomatic individuals when the purpose of the testing is for individualized diagnosis or treatment of COVID-19. Plans are not required, but may choose, to provide coverage of testing for public health surveillance or employment purposes.
  • Plans are required to cover COVID-19 diagnostic tests provided through state- or locality-administered testing sites (e.g., a “drive-through site”). Any health care provider acting within the scope of its license or authorization can make an individualized clinical assessment regarding COVID-19 diagnostic testing, including through state- or locality-administered testing sites.
  • Point-of-care tests for COVID-19 must be covered without cost sharing.
  • Plans should take steps to ensure compliance with the requirements to cover items and services associated with COVID-19 diagnostic testing. Plans should maintain their claims processing and other information technology systems in ways that protect participants, beneficiaries and enrollees from inappropriate cost sharing and should document any related steps. The FAQs note that the departments will take enforcement action, where appropriate, to ensure consumers receive the protections they are entitled to under the FFCRA and CARES Act.
  • Plans should be prepared to respond if they identify providers of COVID-19 diagnostic testing who are not complying with the CARES Act provisions related to cash price posting or who are otherwise acting in bad faith.
    • Plans can give participants and beneficiaries information about providers who have negotiated rates for COVID-19 testing with the plan, or about providers who adhere to best practice standards, and encourage participants and beneficiaries to rely on these providers.
    • Plans should report violations to COVID19CashPrice@cms.hhs.gov.
    • The departments are requesting feedback on how best to monitor abusive practices and encourage consumers to get tested by providers that are not overcharging for their services or otherwise violating the law.

Rapid COVID-19 preventive services coverage

Non-grandfathered group health plans must cover, within 15 business days, without cost sharing, any qualifying coronavirus preventive services, including immunizations recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC).3 Currently, three vaccines have been approved for emergency use: (1) Pfizer-BioNTech COVID-19 vaccine for persons 16 years of age and older, (2) Moderna COVID-19 vaccine for persons 18 years of age and older, and (3) Johnson & Johnson COVID-19 vaccine for persons 18 years of age and older. No other preventive services have been approved at this time.

The FAQs clarify the following:

  • Plans must cover, without cost sharing, all COVID-19 vaccines (and associated administration) with a recommendation in effect from ACIP. Plans and issuers are not permitted to exclude coverage for (or impose cost sharing on) any qualifying coronavirus preventive services.
  • Plans must cover the vaccine administration fee even when the plan is not billed for the vaccine itself (e.g., where a third party, such as the federal government, pays for the preventive immunization).
  • Plans cannot deny coverage of recommended COVID-19 vaccines because a participant or beneficiary is not in a category of individuals prioritized by the CDC and ACIP for vaccination during the initial phases of the COVID-19 vaccination program. Plans may inform participants, beneficiaries or enrollees about which individuals will be vaccinated first when supply is limited but should not communicate that coverage is limited only to individuals who are recommended for early vaccination based on state and local plans for allocation of initial doses of the COVID-19 vaccine or the CDC and ACIP recommendations. Note: A decision by an individual’s provider to decline to give the vaccine to someone because he or she is not within a prioritization category is not an adverse benefit determination made by a group health plan. The provider’s decision is not subject to the ERISA internal claims and appeals and external review requirements.

Provision of preventive services through an EAP or onsite clinic

Similar to previous guidance on the effect of including COVID-19 testing in an EAP or onsite clinic offering, the new FAQs clarify that:

  • An employer may offer benefits for COVID-19 vaccines (and their administration) under an EAP that otherwise meets the requirements to be considered an “excepted benefit.” An EAP will not be considered to provide benefits that are significant in the nature of medical care solely because it offers benefits for COVID-19 vaccines and their administration (including when offered in combination with benefits for diagnosis and testing for COVID-19); however, there must be no cost sharing or employee contributions under the EAP for benefits, and the EAP must comply with other applicable requirements.
  • An employer may offer benefits for COVID-19 vaccines (and their administration) at an onsite medical clinic that constitutes an excepted benefit. Coverage of onsite medical clinics is an excepted benefit in all circumstances.

SBC notice requirements

The departments will not take enforcement action when a plan covers qualifying coronavirus preventive services prior to satisfying the Summary of Benefits and Coverage (SBC) notice of modification requirements. Because a plan must cover coronavirus preventive services (i.e., an approved vaccine) within 15 business days of its approval, it is not possible to provide the 60-day advance notice of modification required for SBCs. Plans must provide notice of the changes as soon as reasonably practicable.

Going forward

In light of the FAQ guidance, employers should:

  • Be aware that their group health plan must cover COVID-19 testing without cost sharing for asymptomatic, as well as symptomatic, individuals, but it does not have to cover such testing without cost sharing for employment or public health surveillance purposes.
  • Be aware that they may offer COVID-19 vaccines to employees via an EAP or onsite clinic without risking the excepted benefit status of the EAP or onsite clinic.
  • Update and distribute their SBCs for any COVID-19 approved preventive care as soon as reasonably practicable.
  • Review the FAQs to ensure they are complying with the COVID-19 preventive care mandates and testing rules.

Footnotes

1 Grandfathered plans are those that were already in existence on the day the ACA was enacted (March 23, 2010) and have been continuously offered without certain changes.

2 See “Departments issue FAQs on implementation of FFCRA and CARES Act,” Insider, April 2020, and “Departments issue new FAQs on FFCRA and CARES Act implementation,” Insider, July 2020.

3 See “Regulations on COVID-19 vaccine and testing requirements issued,” Insider, November 2020.

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Senior Regulatory Advisor, Health and Benefits

Senior Regulatory Advisor, Health and Benefits

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