It's no surprise that many employers are confused about their obligations regarding health care benefits related to COVID-19. The Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Affordable Care Act (ACA) all factor into compliance.
Even Congress itself isn't crystal clear on the rules. For this reason, the Congressional Research Service (CRS) recently produced a report addressing the topic for members of Congress and their staffs. The report reveals helpful insights for employers as well.
The CRS report contains authoritative responses to three questions:
Like many employers, you might have already dealt with the first two questions. The presumed arrival of a vaccine is the next big issue.
Everyone will be relieved when a COVID-19 vaccine is approved, and the question of vaccination coverage becomes germane. Keep in mind that, at such time, state requirements may apply that are more stringent than the federal ones. However, self-insured health care plans generally aren't governed by state law.
Also, employers must comply with certain coverage requirements during the current federally declared "public health emergency period." It's unclear when this period will be lifted — presumably not until a substantial portion of the population has been immunized with an effective vaccine, and case numbers and positivity rates dwindle to manageable levels. Of course, you can still provide coverage beyond the emergency period if it's affordable and advantageous to do so.
Assuming a viable vaccine does become available, coverage requirements would, according to the CRS report, be dictated under the Public Health Service Act — specifically Section 2713 — that was incorporated into the ACA. Sec. 2713 mandates coverage of preventive health services without cost sharing.
"This includes any preventive service recommended with an A or B rating" by either of a pair of federal expert panels created to assess such matters. One is the U.S. Preventive Services Task Force (USPSTF); the other is the Advisory Committee on Immunization Practices (ACIP).
Health plans generally aren't required to cover preventive services when delivered by out-of-network providers. In addition, plans "are allowed to use reasonable medical management techniques, within provided guidelines."
A section of the CARES Act also plays a role. In addition to mirroring the ACA requirement, the CARES Act provision "potentially requires other COVID-19 preventive services, if they are recommended by the USPSTF and the ACIP."
The FFCRA requires "most private health insurance plans to cover COVID-19 testing, administration of the test, and related items and services … without consumer cost sharing, including deductibles, copayments, or coinsurance," according to the CRS report. In addition, the law bars "prior authorization or other medical management requirements."
To prevent use of questionable testing methods, the FFCRA and CARES Act are specific about the kinds of tests that can be administered. They must be FDA-approved, in-vitro diagnostic tests that detect SARS-CoV-2 or diagnose the virus that causes COVID-19. Neither law specifies whether tests that measure an individual's antibodies to the virus qualify, but interpretive regulations by federal agencies concluded that such "serology" tests are covered.
Regulations jointly issued by the U.S. Departments of the Treasury, Labor, and Health and Human Services (HHS) also require coverage, without cost sharing, of "items and services that result in an order for or administration of [COVID-19 testing]."
For example, if a physician orders additional tests to rule out other possible causes of symptoms like those experienced by COVID-19 patients, such as a flu test, those should also be covered. So too must "facilities fees" charged in connection with COVID-19-related testing.
Tests aren't required to be conducted at clinics, however. FDA-approved self-administered home tests are acceptable, so long as they're ordered by "an attending health care provider who has determined that the test is medically appropriate for the individual."
Neither the FFCRA nor the CARES Act directly addresses coverage for COVID-19 treatment. That's where the ACA comes in. The ACA's 10 essential health benefits (EHBs) apply to individual and small group plans and are generally defined at the state level by identifying a benchmark plan.
Applicable large employers (those with at least 50 full-time employees or equivalents), as well as self-insured employers, aren't directly required to provide those benefits. However, they can't impose annual or lifetime limits on EHBs. So, as a practical matter, if yours is a large group or self-insured plan, the design most likely includes EHB coverage.
As noted in the CRS report, regulatory guidance issued by the HHS earlier this year had this to say about the matter: "All … EHB-benchmark plans currently provide coverage for the diagnosis and treatment of COVID-19, but coverage of specific benefits within the 10 categories of EHB, (e.g., hospitalization [and] laboratory services) may vary by state and by plan."
In its guidance, the HHS "suggests that coverage of medically necessary hospitalizations would include coverage of medically necessary isolation and quarantine during the hospital admission." And though self-quarantining at home doesn't come under the heading of an EHB, "other medical benefits that occur in the home that are required by and under the supervision of a medical health provider, such as home health care or telemedicine, may be covered as [an] EHB."
However, even when COVID-19 treatment might come under the heading of an EHB, "cost-sharing and medical management requirements could apply" on a state-by-state basis.
The laws and regulatory guidance issued so far suggest that the health plan coverage rules for COVID-19-related matters are fairly straightforward. Unfortunately, this hasn't been borne out.
A recent investigation by The New York Times found multiple examples of employees being billed for COVID-19 tests and related services for which, in theory at least, they shouldn't have. The insurers contacted by the news provider "faulted the complexity of American medical billing, which sometimes can make it hard to tell when a coronavirus test is provided," according to the report.
The challenge for employers, so it would seem, is not only identifying affordable health care coverage that will serve employees well during the pandemic, but also being prepared to field questions and concerns about a confusing and frustrating claims process.
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