FAQ for Guidance on COVID-19 Legislation

The Department of Labor, Health and Human Services, and Treasury Provide Further Guidance on COVID-19 Legislation 

Since the enactment of the Families First Coronavirus Response Act (FFCRA) on March 18, 2020, the Department of Labor, the Department of Health and Human Services and the Department of the Treasury have released a series of Frequently Asked Questions (FAQs) to guide employers in the implementation of the law’s provisions.  The most recent set of FAQs was released on June 23, 2020.

The June FAQ contains 18 questions on a variety of subjects. The following are some of the more relevant questions and answers.

Are Self-Funded Health Plans Required to Comply With the Provisions of the FFCRA?

The answer is yes.  The FAQ says that:

The statute and FAQs make clear that the requirements apply to both insured and self-insured group health plans.

While we don’t really think that this was ever in doubt, the Departments felt the need to clarify the application of the FFCRA.

What COVID-19 Tests Must Be Required?

The FFCRA and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) mandate that group health plans must cover the cost of testing for Covid-19.  Apparently, the Departments felt that there was some confusion about which tests must be covered.  The FAQs clarify that the following tests are covered:

• A test approved, cleared or authorized under the Federal Food, Drug, and Cosmetic Act;
• A test for which the developer has requested or intends to request emergency use authorization (EAU) from the FDA;
• A test that is developed in and authorized by a State that has notified the Secretary of HHS of its intention to review the test; or
• Any test that the Secretary of HHS determines to be appropriate.

The FAQs go on to say that no test has yet been approved under the Federal Food, Drug, and Cosmetic Act.  The tests, which are authorized, because the developer has sought an EAU are listed on the FDA’s website.  In addition, any tests, which have been authorized by a state, are also shown on the FDA’s website.  Finally, the FAQ says that no other test has been approved by the Secretary of HHS.

In a previous FAQ, the Departments said that a Covid-19 test must be covered “when medically appropriate for the individual, as determined by the individual’s attending health care provider”.  Apparently, the Departments thought there was some confusion about the term “individual’s attending health care provider”.  The June FAQs make clear that the term is not limited to the health care provider “directly” responsible for providing care to the patient.  It includes any provider who “makes an individualized clinical assessment to determine whether the test is medically appropriate for the individual in accordance with current accepted standards of medical practice”.  This means that an individual, who goes to the emergency room or an urgent care center with symptoms and sees somebody other than his primary care physician, can still be given a Covid-19 test that must be paid for by the individual’s group health plan.

Finally, the FAQs clarify that the FFCRA and the CARES Act also cover tests that can take place at home.  In addition, if an individual receives multiple tests, the FAQs confirms that each test must be covered by the individual’s group health plan.

What Tests are Not Covered?

With the country beginning to reopen and people going back to work, this may be the most important part of the FAQs.  The Departments address the question whether tests for “surveillance or employment purposes” must be covered.  In other words, if an employer requires an employee to show a negative test before returning to work, do those tests have to be covered?

The answer is no.

In the FAQ, the Departments say that:

Clinical decisions about testing are made by the individual’s attending health care provider and may include testing of individuals with signs or symptoms compatible with Covid-19, as well as asymptomatic individuals with known or suspected recent exposure to SARS-CoV-2 . . . However, 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 of COVID-19 or another condition is beyond the scope of . . . the FFCRA.

Do the FFCRA and the CARES Act Protect a Patient From Balance Billing?

The answer is maybe.

The FAQs state that the FFCRA, as amended by the CARES Act, provides that an in-network health care provider can only charge an employee the amount negotiated by the provider and the plan.  An employee cannot be charged any additional amount.  In addition, an out-of-network provider can only charge the amount shown on its public website or a lesser amount negotiated by the plan with the provider.  Again, an employee cannot be charged any additional amount.

The question that neither the FFCRA, nor the CARES Act, answers is what if an out-of-network provider does not have a published rate or has not negotiated a lesser amount with the plan.  Can the employee be balanced bill for any amount?  The FAQs do not really answer this question; although they do say that “the Departments interpret the provisions of section 3202 of the CARES Act as specifying a rate that generally protects participants, beneficiaries, and enrollees from balance billing for a COVID-19 test”.  However, instead of providing a real solution, they simply note that a provider that fails to comply with the provisions of the CARES Act, regarding the publication of its cash price for a test, is subject to a monetary penalty.  The assumption is that all providers will either publish the cash price on their website or will negotiate a price with the employee’s plan in order to avoid a civil penalty.  As a result, this situation will never arise.

For questions about the June FAQs, the FFCRA, the CARES Act or your group health in general, please contact RMC Group.