Labor & Employment Law Daily Dems challenge agency guidance exempting plans from covering COVID-19 testing for surveillance or employment purposes
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Monday, July 13, 2020

Dems challenge agency guidance exempting plans from covering COVID-19 testing for surveillance or employment purposes

By Pamela Wolf, J.D.

The June 23 guidance creates barriers to testing that are contrary to the FFCRA and CARES Act, according to Democratic health committee leaders.

Democratic health committee leaders in both Chambers have raised concerns about the Trump Administration’s new guidance that would permit insurance plans and group health plans to deny coverage claims for COVID-19 tests and other related services, as the lawmakers see it, in violation of Congress’ clear legislative intent that these tests be provided without consumer cost-sharing and without limitation.

On June 23, the Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Department of the Treasury (collectively Departments) published a series of frequently asked questions (FAQs) about implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and other health coverage issues related to COVID-19.

Testing for employment purposes. Among other things, the guidance addressed testing conducted to screen for general workplace health and safety (such as employee “return to work” programs), for public health surveillance for SARS-CoV-2, or for any other purpose not primarily intended for individualized diagnosis or treatment of COVID-19 or another health condition, saying that these types of testing are beyond the scope of FFCRA Sec. 6001. This mean that health insurance and group health plans are not required to cover these types of testing.

Increased barriers to testing. In a July 7 letter to HHS Secretary Alex Azar, Labor Secretary Eugene Scalia and Treasury Secretary Steven Mnuchin, the lawmakers said the guidance “will result in increased barriers to COVID-19 testing for individuals and pose a serious threat to the testing access needed to protect the nation’s public health.”

Contrary to FFCRA and CARES Act. The lawmakers explained in their letter that, understanding widespread access to testing is critical to the nation’s response to the coronavirus pandemic, Congress included provisions in both the FFCRA and the CARES Act to ensure that health insurance and group health plans cover all COVID-19 tests and related services without any cost-sharing requirements, including deductibles, copayments, and coinsurance.

“With COVID-19 cases skyrocketing and our testing capacity nowhere near where it needs to be, it is unacceptable that this Administration’s priority seems to be giving insurance companies loopholes instead of getting people the free testing they need,” the Democratic committee leaders wrote.

According to the lawmakers, the revised guidance is “deeply concerning as it appears to be a change that is without basis in the plain language of the statute.” They contend that the guidance’s interpretation of the FFCRA “is not supported by the statute, which makes clear that health plans are required to cover, without any conditions or limitations, the specified items and services related to diagnostic tests for the detection of COVID-19.”

What’s happening on the ground. The committee leaders also pointed to “concerning reports” on COVID-19 testing access, including insurers declining to cover serology testing, insurers refusing to cover tests for asymptomatic individuals, nursing homes declining to pay for coverage of tests for their employees, and self-funded health plans refusing to pay for tests at all or requiring cost-sharing from consumers.

“As communities across the country reopen and people return to in-person work, it is critical that everyone has access to COVID-19 tests without any financial barriers,” the committee leaders wrote. “Widespread testing must be in place to detect and stop the spread of COVID-19 and ensuring safety in the workplace is critical.”

What motivated the new guidance? In addition to requesting that the Departments immediately reexamine the June 23 guidance and clarify the obligations of health plans to provide coverage of COVID-19 diagnostic and serologic tests without cost-sharing in all circumstances,” the lawmakers sought documents and information about what appeared to be a change in position on mandated insurance coverage of COVID-19 testing, including these:

  • When did HHS, Labor, or the Treasury become aware of insurers’ refusal to provide coverage of COVID-19 tests without cost-sharing? Please provide copies of any such complaints, as well as any documentation of action your Departments have taken in response.
  • Why did the Departments explicitly revise the guidance to exempt plans from providing coverage for COVID-19 testing for surveillance or employment purposes? Did the Departments issue the revised guidance at the direction of the White House?

The Democratic committee leaders asked for responsive documents and answers to these and other questions by July 14, 2020.

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