Regulatory Agencies Clarify FFCRA and CARES Act Application to Group Health Plans

Legal Alert

On Saturday, April 11, 2020, the Departments of Labor , Health and Human Services (HHS), and the Treasury (collectively, the Departments) jointly issued FAQs About Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Act Implementation (FAQs), which provide information for group health plans and health insurers about implementation of the Families First Coronavirus Response Act (the FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), and other health coverage issues related to Coronavirus Disease 2019 (COVID-19).  The Departments anticipate issuing additional guidance about the FFCRA, the CARES Act, and other health coverage issues related to COVID-19.

The FAQs clarify several previously unresolved questions.

  1. Retiree-only plans are not subject to the requirement to provide COVID-19 testing without cost-sharing, prior authorization, or other medical management requirements. Q&A 1 states that these requirements, applicable to almost all group health plans, do not apply to group health plans that do not cover at least two employees who are current employees (such as plans in which only retirees participate).
  2. Group health plans must pay for COVID-19 testing without cost-sharing, even when the testing is provided out-of-network. Q&A 7 confirms that out-of-network providers must be reimbursed for COVID-19 testing, with no cost-sharing, in an amount equal to the cash price for the service that the provider has published on a public website or at a lower rate the plan negotiates with the provider.  It is still unclear what amount the group health plan or insurer must pay for an office visit to an out-of-network provider during which the COVID-19 test is administered or ordered.
  3. Scope of COVID-19 Testing coverage requirements. The FFCRA requires plans and health insurers to provide benefits for certain COVID-19 related items and services furnished during a visit with an attending provider at which a COVID-19 test is ordered or administered, including in-person and telehealth visits, as well as visits to urgent care centers and emergency rooms.  Q&A 8 confirms that the requirement extends to COVID-19 testing-related items and services ordered or administered in non-traditional settings, including drive-through screening and testing sites where licensed healthcare providers are administering COVID-19 tests.  The FAQs also state that plans and insurers are required to pay 100% of the cost of (1) other tests performed during the office visit to determine the need for COVID-19 testing, and the visit results in an order for or administration of a COVID-19 test, including, for example, a flu or pneumonia test; and (2) serological tests, which measure the amount of antibodies or proteins present in the blood when the body is responding to the COVID-19 virus.  A serological test detects the patient’s immune response to the COVID-19 infection rather detecting the virus itself.  Finally, the FAQs clarify that a group health plan or insurer is only required to pay 100% of the office visit (and related items and services) if a COVID-19 test is ordered or administered at the office visit, and does not apply in situations in which a doctor is consulted concerning the possibility of a COVID-19 infection, if the doctor does not administer or order a COVID-19 test.
  4. An EAP can be used to provide a limited number of telehealth or office visits for diagnosis and testing for COVID-19. In Q&A 11, the Departments confirm that an employee assistance program (EAP) that otherwise qualifies as an “excepted benefit” under the Affordable Care Act (ACA) can offer limited benefits for diagnosis and testing for COVID-19 while a public health emergency declaration or national emergency declaration is in effect.

The full FAQs can be accessed at:

Other guidance

HHS has announced that a portion of the $100 billion Provider Relief Fund established under the CARES Act would be used to reimburse healthcare providers for COVID-related treatment of uninsured patients.  HHS confirms on its website that providers who receive funds from the Provider Relief Fund must agree to abstain from balance or “surprise” billing any patient for COVID-related treatment.  Under the FFCRA, private insurers are required to cover a member’s cost-sharing payments for COVID-19 testing, but no such requirement applies to services to treat COVID-19.  However, the HHS website also states that a number of private insurers, including Humana, Cigna, UnitedHealth Group, and the Blue Cross Blue Shield system, have voluntarily agreed to waive cost-sharing payments for the treatment of COVID-19.

We continue to monitor formal and informal guidance on the FFCRA and the CARES Act and will provide additional information as it becomes available.  If you have questions about how the FFCRA and the CARES Act impact your company’s group health plan(s), please contact a member of the Stoel Rives Employee Benefits team.

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