Seyfarth Synopsis: On March 19, Senator McConnell introduced the Coronavirus Aid, Relief, and Economic Security (CARES) Act. While the Act largely focuses on economic relief for businesses and individuals, it did contain certain provision impacting benefit plans (for more on the potential impact for retirement plans, click here). Notably, the CARES Act replicates and builds off of the COVID-19 testing provisions from the Families First Coronavirus Response Act, as described below.
As we described in our earlier blog posts (here, here and here), the Families First Act required health plans to offer free testing for COVID-19 and any related admissions (including telehealth fees relating to testing). The CARES Act appears to serve as a technical correction, of sorts, with respect to the testing mandate under the same text from Families First and clarifies certain unanswered questions facing plan sponsors. Specifically:
- Expiration Date. As drafted, it appeared the Families First Act’s COVID-19 testing provisions arguably were set to expire at the end of April. The CARES Act cleans up the cross-references in a manner we assume is intended to continue the testing mandate through the expiration of the Emergency Declaration.
- Definition of Covered Screening. The Families First Act only mandated coverage for FDA-approved COVID-19 testing. In an acknowledgment that tests are now being developed at the state and commercial level, the CARES Act expands the list of what forms of testing are covered.
- Telehealth Change? The CARES Act drops the parenthetical requiring coverage for no-cost telehealth services associated with testing. The intent here is unclear. We don’t believe this was intended to supersede/replace the Families First Act, so perhaps this was just a drafting error.
- Reimbursement Rate for Testing and Admissions. The CARES Act specifies the reimbursement rate that plans must pay for testing both in the in-network and non-network setting. This is important for a few reasons:
- This clarifies that plans must cover both in-network and non-network testing. (It was unclear from the Families First Act whether non-network testing was required to be covered at no cost).
- Many had expressed concern that plans could be subject to price gouging in the non-network setting. To address this, the CARES Act (a) requires that providers list, on a publically available website, the cash cost of COVID-19 testing, and (b) only requires that plans pay that rate. Presumably, this should avoid the issue of balance billing (unless the provider charges more than its published rates), and perhaps would limit price-gouging concerns because the information would be publicly available.
- No Cost Vaccines (when available). The CARES Act goes further than Families First in requiring that plans consider coronavirus vaccines to be a preventive service. As most are aware, the ACA requires that preventive services must be provided at no cost. While there is no vaccine of yet, this appears to be an attempt to get ahead of an anticipated vaccine release at some point down the road.
Further, under the ACA, plans must cover recommendations by the US Preventive Services Task Force no earlier than the first plan year beginning one year after the recommendation is added. The CARES Act creates a special rule for COVID-19 vaccines, requiring coverage within 15 days of the date the recommendation is released.
The CARES Act also strikes new ground in allowing telehealth services to be covered under a High Deductible Health Plan (HDHP) before the deductible is met, thus not impacting coverage for Health Savings Accounts (HSAs). This is temporary relief, however, and only allows for the first dollar coverage of such telehealth services for plan years beginning before 2022.
We will continue to track the CARES Act and keep you apprised of its progress. The proposal included various other benefits-related items that we will highlight in a separate blog as we continue to monitor.