On June 23, 2020, the U.S. Department of Labor (USDOL), the Department of Health and Human Services (HHS), and the Department of the Treasury jointly released updated guidance, in the form of FAQs, to implement the coronavirus testing provisions of the Families First Coronavirus Response Act (the FFCRA), as extended by the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act).

As discussed in our previous advisory, the guidance confirms private health insurance plans (including insured, self-insured, and grandfathered group health plans) must cover COVID-19 testing and related services used for diagnostic purposes without cost-sharing, but excludes non-diagnostic (surveillance) testing, such as for employer-mandated, or school-screening from its scope. In short, this means that plans may deny coverage for testing conducted solely as a return to work mandate or for other non-diagnostic purposes.

Plainly, the guidance creates a number of issues for employers, employees, and return to work programs, including whether employers will pay for required testing or leave testing costs to the employees. Employers requiring COVID-19 testing prior to returning to work should confirm if their health insurance plan will cover COVID-19 testing for non-diagnostic purposes following the Departments' latest guidance and revisit their testing and payment policies as needed.

If the insurance plan will not cover the cost of testing, employers may wish to limit return-to-work screening to temperature checks and questionnaires about symptoms and exposures rather than mandating COVID-19 testing.

What Diagnostic Testing Are Group Health Insurance Plans Required to Cover?

The guidance confirms that, during the emergency period, insurers must cover all U.S. Food and Drug Administration (FDA) approved or emergency use authorization (EUA) authorized COVID-19 testing— including at-home COVID-19 tests, multiple tests, tests for active COVID-19 infections and tests for COVID-19 antibodies—determined to be medically appropriate for the individual by a healthcare provider "who is licensed (or otherwise authorized) under applicable law, who is acting within the scope of the provider's license (or authorization), and who is responsible for providing care to the patient."

The guidance removes the requirement that a provider be "directly" responsible for providing care to the patient as long as the provider makes an individualized clinical assessment and confirms that testing is medically appropriate based on accepted standards of current medical practice. Plans, insurers, hospitals, and managed care companies are not healthcare providers for this purpose.

The guidance also confirms the CARES Act requires coverage and protects individuals from any cost-sharing for COVID-19 testing and any facility fees related to the COVID-19 test or an evaluation to determine the individual's need for testing. These protections extend to other services administered in connection with the provider's determination of whether a COVID-19 test is appropriate, including services such as a flu test or chest X-ray. As discussed in our previous advisory, this cost-free testing and treatment will not jeopardize an employee's eligibility to participate in a Health Savings Account (HSA).

Are Group Health Insurance Plans Required to Cover Non-diagnostic Testing?

No. The guidance is clear that plans may refuse to cover non-diagnostic testing, such as testing conducted to screen for general workplace health and safety, for public health surveillance, or for any other purpose not primarily intended for individualized diagnosis or treatment of COVID-19 because such testing is outside the scope of Section 6001 of the FFCRA.

The guidance states that the FFCRA and CARES Act only require coverage of items and services for diagnostic purposes, meaning testing of individuals with signs or symptoms compatible with COVID-19, or testing of asymptomatic individuals with known or suspected recent exposure to COVID-19, when it is determined to be medically appropriate by the individual's health care provider.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.