Seyfarth Synopsis: Because everything has a coronavirus angle now….this blog post covers various issues and considerations plan sponsors and administrators should keep in mind as the coronavirus outbreak continues to escalate.
While this list is by no means exclusive (and may be added to over time), here are a few steps plan sponsors can take to ensure they aren’t caught flat-footed if community spread continues:
- HIPAA Privacy and Security.
o Non-HIPAA Medical Inquiries. It is not outside of the realm of possibility that if workers for your company test positive for COVID-19, your organization may be contacted by public health authorities seeking information about the worker’s symptoms, who they may have interacted with in the workforce, and where they may have traveled. Or, companies may seek to obtain verification from a worker returning from an at-risk country that the worker isn’t showing any symptoms of coronavirus. It’s important to understand that most of these types of inquiries are not governed by HIPAA because the request does not include a request to the health plan (the covered entity) for protected health information (PHI). That said, other employment laws or privacy laws may come into play (e.g., ADA restrictions on medical exams or inquiries, OSHA concerns, etc.). For a more detailed consideration of employment considerations, see the link below to our coronavirus website.
o Health Plan Disclosures to Public Health Entities. Even so, it’s possible that the CDC, HHS or a state agency may directly request information from the health plan to determine whether other persons have experienced symptoms consistent with COVID-19. HIPAA generally permits a health plan to disclose PHI to a public health authority to prevent or control the spread of an infectious disease. Such a public health authority can also request that the health plan disclose such PHI to a foreign government agency. If a health plan is unsure whether this permitted use exception applies, it could always seek an authorization from the participant to disclose the information. To be clear, even though an exception would permit a health plan sponsor to disclose PHI without the participant’s consent in this context, other HIPAA rules continue to apply, including the minimum necessary rule (limiting the scope of the disclosure) and the record-keeping requirements (tracking such disclosures and making them available upon request).
o HIPAA Policies – Remote Work Planning. Many health plan HIPAA privacy and security policies limit or prohibit employees within the HIPAA “firewall” from bringing home materials containing PHI or from accessing EPHI or creating paper copies of PHI remotely. Health plan administrators should consider whether to relax this requirement (and amend their policies accordingly) to facilitate remote-working/quarantine-type situations. To ensure proper safety standards exist (and depending on the nature/scope/sensitivity of PHI workers will be accessing), some health plan administrators might determine that it is appropriate to invest in equipment (software, locking file cabinets, etc.) to facilitate this remote-work shift.
- Health Plan Coverage
o TPA Emergency Coverage Contingencies. Certain third-party administrator contracts contain catastrophic event clauses that permit the TPA to take certain actions in the event of a government-declared emergency. These measures can include waiving prior authorization requirements, paying non-network providers at the network rate, and loosening time limits for filing claims/appeals. Regardless of whether your agreement contains such provisions, plan sponsors should consider engaging their TPA in a discussion about contingency planning so that both parties are aligned and prepared.
o Medical Air-Evacuations. Medical air evacuations (especially non-network medical evacuations) can be one of the higher-cost services covered by health plans. Plan sponsors should review their health plan, stop-loss and BTA policies to determine whether adequate coverage exists in the event there is a need to transport a participant from a remote domestic location or from an international location to the US.
o What About Those Surgical Masks? While the title of the blog post was an attempt at humor, because it asks the question, we felt obliged to answer. Surgical masks might be covered as an eligible medical expense, depending on the circumstances (including whether they’re used for general prevention or due to personal illness or the need to treat a family member who has illness). Same goes for hand sanitizer. Purchasing surgical masks while healthy and not near people who have contracted the virus (which the CDC has asked the public not to do) would generally not be covered. If in doubt, request a letter of medical necessity.
- Disability/Leave Policies
o Will Quarantine-Related Leaves Be Covered? If a person contracts COVID-19, that illness would often be covered by a company’s sick/disability leave policy (and if a family member contracts COVID-19, leave to care for that family member could be covered by the FMLA). That said, many company policies will not cover a quarantine-type circumstance (e.g., where a person has been exposed to a high-risk individual or is returning from a high-risk area but is not yet showing symptoms). Companies should consider how to handle these circumstances. While a detailed discussion is beyond the scope of this blog, see below for additional Seyfarth resources.
For a more extensive overview of workplace considerations relating to coronavirus, Seyfarth maintains a coronavirus legal issues and trends website: https://www.seyfarth.com/trends/coronavirus-covid-19.html