SPBA Email Alert - April 1, 2020

COVID-19 Frequent Questions from SPBA Members

Below are questions from SPBA members and answers created by the SPBA team that draw on the recent laws passed, Federal guidance, discussions with agency staff, and webinars.

COVID-19 Testing Mandate

What is the COVID-19 testing requirement in the Families First Coronavirus Response Act?

The Families First Coronavirus Response Act (FFCRA) requires all group health plans, self-funded or fully insured, other than those that just provide excepted health benefits, to provide coverage, without cost-sharing, prior authorization, or other medical management practices, for FDA-approved diagnostic tests to detect the novel coronavirus and the disease it causes. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was subsequently signed into law and it expanded the coverage mandate to include tests:

-       Approved by the FDA;

-       From a developer that has requested or intends to request emergency use authorization;

-       Developed in and authorized by a state that has notified HHS of its intention to review tests intended to diagnose COVID-19; or

-       Determined by HHS to be appropriate in guidance.

What is the effective date and end date of the testing requirement?

This testing requirement became effective the day the Families First Coronavirus Response Act was enacted – March 18. It is currently in effect. The requirement will expire at the end of the declared Public Health Emergency.

Does the testing requirement apply to all self-funded plans, both ERISA and non-ERISA?

Yes. It applies to all group health plans with the exception of those providing excepted benefits.

Can plans direct participants to certain testing places, or limit testing to certain facilities based on type of facility or network status?

The FFRCA requires testing to be covered without cost-sharing (including deductibles, copayments, and coinsurance), and also without “prior authorization or other medical management requirements.” The text of the bill does not define the term ‘medical management.’

SPBA reads the prohibition on medical management practices to mean plans cannot limit where plan participants may be tested for COVID-19, direct plan participants to certain testing sites, or require participants to be tested at an in-network facility.

Can a hospital employer plan limit testing to their facility and nowhere else?

No.

What coverage of services is required related to COVID-19 testing?

The Families First Coronavirus Response Act also requires coverage of related services or items furnished to covered individuals in an office setting, telehealth, urgent care and emergency room if they lead to an order for testing and then only to the extent that they relate to the implementation or administration of the test or an evaluation to determine need for testing.

Must grandfathered plans cover the testing with no cost-sharing?

Yes.

Must tribal plans cover testing with no cost-sharing?

Most likely. There does not appear to be an exemption in the law for tribal plans. SPBA is reaching out to the agencies for clarification.

Is there a limit on the number of tests plans must cover with no cost-sharing?

No.

Paid Leave

 

	Emergency Paid Sick Leave	Emergency Family and Medical Leave
Effective Date – Expiration Date	April 1, 2020 – December 31, 2020	April 1, 2020 – December 31, 2020
Covered Employers	Private employers with 500 or fewer employees. Most public employers with at least one employee, with certain exceptions.  Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.	Private employers with 500 or fewer employees. Most public employers with at least one employee, with certain exceptions.    Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
Eligible Employees	All employees of covered employers.	Employees of covered employers who have worked at least 30 days before the designated leave.
Triggering Event	The employee is unable to work or telework because the employee: -       Is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or -       a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19.	The employee is unable to work because they must care for a minor child because, due to a declared public health emergency related to COVID-19: -       The child’s school or place of care has been closed -       The child’s care provider (someone who receives compensation for providing care on a regular basis) is unavailable.
Leave	80 hours for full time employees. Part time employees receive the average number of hours they work in a two-week period.	12 weeks*
Payment Amount	Employees taking leave for their own COVID-19 exposure or symptoms receive full pay.   Employees taking leave to care for someone subject to quarantine or a child whose care provider is closed or unavailable receive 2/3 their regular pay.	The first two weeks may be unpaid. The remaining weeks are paid at 2/3 of the employee’s regular pay.

* The total available leave from both programs is 12 weeks. If an individual takes both emergency paid sick leave AND emergency FMLA leave, they are considered to run concurrently.

 

Telehealth          

What does the FFCRA require for telehealth?

The Families First Coronavirus Response Act requires plans to cover “Items and services furnished to an individual during health care provider office visits (which term in this paragraph includes in-person visits and telehealth visits), urgent care center visits, and emergency room visits that result in an order for or administration of an in vitro diagnostic product … but only to the extent such items and services relate to the furnishing or administration of such product or to the evaluation of such individual for purposes of determining the need of such individual for such product.”

SPBA reads this language to require coverage for remote care services relating to the furnishing or administration of a COVID-19 diagnostic test or evaluating the need for testing in an individual. It is not a requirement for telehealth coverage more broadly.

If a group does not offer telehealth currently, do they need to add that benefit?

Under the FFCRA, plans will have to cover remote care services provided in relation to the administration of a COVID-19 test or the evaluation of determining the need to test the individual for COVID-19.

If a plan currently covers telehealth through a contracted stand-alone vendor, will it be required to also cover telehealth visits with traditional providers?

To the extent a traditional provider is providing the services discussed above, plans do have to provide coverage. The FFCRA does not require a telehealth expansion for all remote care services offered by traditional providers.

Must a plan cover calls for mental health providers now that participants cannot go into the office for therapy?

Mental health providers must be treated the same way the plan treats all other providers regarding telehealth coverage.