The Families First Coronavirus Response Act (FFCRA) , amended by the Coronavirus Aid, Relief and Economic Security Act ( CARES) [herein the Acts], and subsequent guidance, included a few provisions specific to how plans and insurance carriers or issuers cover COVID-19 related items and services. These Frequently Asked Questions (FAQ) are the latest sub-regulatory guidance provided following enactment of Acts that are used to shape the law. Below are the highlights. Plan sponsors are encouraged to read the FAQs.
Q1. Which types of group health plans and health insurance coverage are subject to FFCRA, as amended by the CARES Act?
Group health plans and health insurance issuers (herein plans / issuers) offering group or individual health insurance coverage (including grandfathered health plans) are required to comply with the insurance provisions within the Acts; including both insured and self-insured plans. This also includes:
- Private employment based (ERISA plans)
- Non-federal governmental plans (e.g., state and local governments)
- Church plans
- Individual health insurance coverage, including in the individual market or outside of the Exchange
- Student health insurance
Does not apply to:
- Short-term, limited-duration insurance
- Excepted benefits
- Plans that do not cover at least two current employees (e.g., retiree plans)
Q2. When are plans / issuers required to comply?
FFCRA, as of March 18, 2020 (the date of enactment and not the “15 days after” that provision that is believed to be stated mistakenly within the Act). This means, that as of that date, plans must provide coverage for the COVID-19 related items and services mandated when furnished on or after that date. There may not be cost sharing imposed, prior authorization or other medical management requirements with respect to those items and services.
Q7. Must plans / issuers provide coverage for items / services furnished by providers that have not agreed to accept a negotiated rate, including out-of-network providers?
Yes. If the plan / issuer and the provider do not have a contracted negotiated rate, the plan / issuer will pay the cash price listed by the provider on the public internet website or negotiate a lower cash price.
Q8. Plans / issuers are required to provide benefits with no cost-sharing or medical management for items and services furnished during healthcare provider office visits, which include in-person and telehealth visits, as well as urgent care centers and emergency rooms (but not treatment beyond that). Under what circumstances are items or services considered furnished during a COVID-19 visit?
The term “visit” is to be construed broadly to include both traditional and non-traditional care settings in which a COVID-19 diagnostic test is ordered or administered, including drive-through screening and testing sites where licensed healthcare providers are administering such testing.
SBC / Plan Document
Q9. May plans / issuers provide coverage allowing the plan to add benefits or reduce or eliminate cost-sharing, for the diagnosis and treatment of COVID-19, PRIOR to satisfying any applicable notice of modification requirements and without regard to otherwise applicable restrictions on midyear changes?
Yes. A Summary of Benefits and Coverage (SBC) must be amended 60 days prior to the date on which the modification will become effective. ERISA additionally requires notice of material modification after the fact.
The Departments, regarding the Summary of Benefits and Coverage (SBC), provide that if a plan / issuer makes a material modification (as defined under ERISA above) in any of the terms of the plan or coverage that would affect the content of the SBC that is not reflected in the most recently provided SBC, and that occurs other than in connection with a renewal or reissuance of coverage, the plan or issuer must provide notice of the modification to enrollees not later than 60 days prior to the date on which the modification will become effective.
However, to help facilitate the nation’s response to COVID-19, the Departments will not take enforcement action against any plan or issuer that makes such modification to provide greater coverage related to the diagnosis and/or treatment of COVID-19, without providing at least 60 days advance notice. Plans and issuers must provide notice of the changes as soon as reasonably practicable. Leavitt Group Compliance provided guidance on this topic that predates these FAQs. These rules still apply.
Q12. May an employer offer diagnosis and testing at an onsite clinic that constitutes an excepted benefit?
Yes. Coverage of onsite medical clinics is an excepted benefit in all circumstances.
Q13. How can plans / issuers use telehealth to mitigate impact of COVID-19?
While the response does not change add any changes or clarity, it encourages plans to promote the use of telehealth if they have it available, including by notifying of its availability and ensure access to a robust suite of such remote services, including for mental health and substance use disorder services. Telehealth is not mandated and only testing and diagnosis is covered with no cost sharing or other medical management requirements. But it is encouraged, again, to consider offering telemedicine without any cost-sharing during the COVID-19 times.
The Departments remind plans that High Deductible Health Plans (HDHP) that are Health Savings Account (HSA) compatible will remain so even if offering telehealth services without cost sharing or below the minimum required deductible. Plans are reminded to update plan documents per question 9.
In the following question found in the FAQ, the same non-enforcement policies are said to apply here, as to question 8, regarding making changes and providing notice of changes to the plan. Plans / issuers must provide notice of the changes as soon as reasonably practicable. Although enforcement relief is being provided for the advance notice requirements SBC requirements (to the extent a plan / issuer maintains any such changes beyond the emergency period) plans / issuers must comply with all other applicable requirements to update plan documents or terms of coverage.
Plan sponsors are reminded to provide broad coverage for testing and diagnosis of COVID-19 but given some laxity in enforcement in some compliance requirements, such as updating plan document language. Be sure to update when practical to do so but no later than September 23, 2020 (barring other changes to the ever-changing law). For more information on how the recent COVID-19 rules affect your business and plan, check out the Leavitt Group Covid-19 Resource Center.
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