COVID-19 Emergency: Update for Group Health Plans

Employee Benefits & Executive Compensation

On March 18, 2020, the Families First Coronavirus Response Act was signed into law. The Act, among several other things, provides for no cost COVID-19 testing for participants in group health plans. 

Group health plans and health insurance issuers that offer group or individual health insurance coverage (including ACA grandfathered health plans) must provide 100% coverage, without any deductibles, copayments, or coinsurance requirements, or prior authorization requirements, for any of the following items and services during the emergency period: (1) testing for the detection of or the diagnosis of the virus that causes COVID-19, including the costs for the test product itself and its administration; and (2) items and services provided during office (including telehealth), urgent care center, and emergency room visits that result in such testing (which items may include a flu test and other such tests). The requirement to cover COVID-19 testing costs starts from the date of enactment until the Secretary of Health and Human Services determines that the public health emergency has ended.

Employers should work with their insurers or third-party administrators to ensure that their plans are complying with the requirements to cover this testing at 100%, even if employees are enrolled in high deductible health plans. Additionally, employers should ensure that employees are adequately informed that these services are covered to ensure that employees seek out testing if they are exhibiting symptoms for COVID-19. Finally, the legislation only requires plans to cover COVID-19 testing costs at 100%, while treatment for COVID-19 (e.g., hospitalization, etc.) would continue to be covered under the plan's normal cost-sharing terms. 

Relaxation of HIPAA for Telehealth

The Department of Health and Human Services (HHS) issued a Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency on March 17, 2020 (the “Notification”). The Notification provides that effective immediately, the Office of Civil Rights (OCR) will exercise its enforcement discretion and will not impose penalties for noncompliance with the HIPAA rules against covered healthcare providers in connection with the good faith provision of telehealth during the COVID-19 emergency. This exercise of discretion applies to telehealth provided for any reason, regardless of whether the telehealth service is related to COVID-19. 

Healthcare providers that provide telehealth services are typically subject to numerous HIPAA requirements regarding the communications technologies used, including entering into business associate agreements with video communication vendors. The Notification provides that covered healthcare providers that want to use audio or video communication technology to provide telehealth to patients during the COVID-19 emergency can use any nonpublic facing remote communication product that is available. This includes applications that allow for video chats such as Apple FaceTime, Facebook Messenger, Google Hangouts, or Skype without risk that OCR might impose a penalty for noncompliance with HIPAA rules. HHS encourages providers to notify patients that these applications potentially introduce privacy risks, and providers should use all available encryption and privacy modes when using such applications. Healthcare providers may not use any public-facing remote communication product such as Facebook Live, Twitch, TikTok, and similar video communication applications. 

Consider reminding employees about a telehealth option if your group health plan covers it.

For additional information on this topic, please contact your regular Calfee attorney or the author(s) listed below:


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