Employer Group Health Plan Mandate Related to No-Cost COVID-19 Testing and New Paid and FMLA LeaveMarch 23, 2020 – Alerts
The Families First Coronavirus Response Act (FFCRA) requires employer group health plans to cover the COVID-19 test with no cost-sharing and includes new federal paid and unpaid leave requirements that affect employer group health plans.
Affected employers should take proactive measure to amend group health plan documents and policies and coordinate with insurers, third party administrators and other outside vendors as needed to comply with the federal mandates.
Government agencies (such as Health and Human Services, the Internal Revenue Service and the Department of Labor) will hopefully issue guidance with additional details, particularly with explanations about the health care items and services that are necessary for the test and information on potential plan amendments and notices. We will monitor the situation and provide updates as developments unfold.
Group Health Plan Coverage for COVID-19 Testing
The Families First Coronavirus Response Act (FFCRA) requires that group health plans cover testing for COVID-19, along with health care items and services necessary for the tests, at no cost-sharing or prior authorization or medical management requirements. This is found in Division F of the FFCRA, Health Provisions, Section 6001 (H.R. 6201). The text of Division F is provided below. This mandate is effective March 18, 2020.
We expect insurers will add the required COVID-19 no-cost testing provisions to fully-insured employer plans. We recommend that employers with self-insured group health plans formally amend their group health plans to provide the required coverage, confirm that the plan’s third party administrator will administer the plan accordingly and confirm that the stop-loss carrier will include the plan’s COVID-19 testing costs as covered claims under the stop-loss policy.
ERISA group health plan participants must also be notified of the added no-cost COVID-19 testing and related services by providing them with a summary of material modifications (SMM). The employer will also want to update the summary of benefits and coverage (SBC) to describe the impacted benefit changes (like COVID-19 testing below the deductible).
Impact of New Paid and Unpaid FMLA Leave on Benefits Under Employer Group Health Plans
As noted in this previously authored alert, the FFCRA imposes new paid and unpaid FMLA leave mandates on private employers with less than 500 employees and governmental employers. Those mandates are effective April 2, 2020. The mandates amend Section 102(a)(1) of the FMLA (29 U.S.C. § 2612(a)(1)) and add a subsection “F,” which permits an employee to take 12 weeks of FMLA leave due to a “qualifying need related to a public health emergency.” An employee has a “qualifying need” when unable to work due to a need to care for a son or daughter who is less than age 18 years due to the closure of school or place of child care, or a child care provider becomes unavailable. A “public health emergency” is an emergency with respect to COVID-19 declared by federal, state or local authority.
Because the new triggering event for FMLA leave is made under Section 102 of the FMLA, it is subject to Section 104(c) of the FMLA (29 U.S.C. 2614(c)), which requires that group health plan coverage continue during these leaves of absence, subject to the employee’s payment of the employee’s share of the premium.
For employers that continue group health plan coverage, this will be non-COBRA coverage and at the active employee rate. For unpaid FMLA leave, the group health plan coverage must allow the employee to continue group health plan coverage at the active employee rate, subject to cancellation for employee premium nonpayment and reinstatement of coverage on return to employment. For unpaid non-FMLA leave that triggers loss of group health plan coverage due to reduction of hours, COBRA continuation coverage must be offered, but at the COBRA premium rate, which may not be more than 102% of the non-COBRA premium.
In light of these changes, we recommend that employers take the following steps (as applicable to the employer):
- Amend group health plan documents and provide notice to employees
- Update leave policies and procedures
- Communicate with insurers (for fully-insured plans), third party administrators and stop-loss carriers (for self-insured plans), COBRA vendors and other third party vendors
- Review life and disability insurance policies, because leaves of absence not covered by FMLA or USERRA (military leave) often trigger a loss of eligibility to participate
DIVISION F—Health Provisions
SEC. 6001. Coverage of testing for COVID–19.
(a) In general—A group health plan and a health insurance issuer offering group or individual health insurance coverage (including a grandfathered health plan (as defined in section 1251(e) of the Patient Protection and Affordable Care Act)) shall provide coverage, and shall not impose any cost sharing (including deductibles, copayments, and coinsurance) requirements or prior authorization or other medical management requirements, for the following items and services furnished during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) of the Social Security Act (42 U.S.C. 1320b–5(g)) beginning on or after the date of the enactment of this Act:
(1) In vitro diagnostic products (as defined in section 809.3(a) of title 21, Code of Federal Regulations) for the detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19 that are approved, cleared, or authorized under section 510(k), 513, 515 or 564 of the Federal Food, Drug, and Cosmetic Act, and the administration of such in vitro diagnostic products.
(2) 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 described in paragraph (1), 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.
(b) Enforcement—The provisions of subsection (a) shall be applied by the Secretary of Health and Human Services, Secretary of Labor, and Secretary of the Treasury to group health plans and health insurance issuers offering group or individual health insurance coverage as if included in the provisions of part A of title XXVII of the Public Health Service Act, part 7 of the Employee Retirement Income Security Act of 1974, and subchapter B of chapter 100 of the Internal Revenue Code of 1986, as applicable.
(c) Implementation—The Secretary of Health and Human Services, Secretary of Labor, and Secretary of the Treasury may implement the provisions of this section through sub-regulatory guidance, program instruction or otherwise.
(d) Terms—The terms “group health plan”; “health insurance issuer”; “group health insurance coverage”, and “individual health insurance coverage” have the meanings given such terms in section 2791 of the Public Health Service Act (42 U.S.C. 300gg–91), section 733 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b), and section 9832 of the Internal Revenue Code of 1986, as applicable.