By Tulay Turan, J.D.
CMS has issued a letter highlighting COVID-19 guidance relevant to non-Federal governmental plan sponsors.
In addition to complying with the COVID-19 diagnostic testing-related requirements under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), CMS encourages all non-Federal governmental plans to offer services related to the treatment of COVID-19 to their members without cost-sharing and without prior authorization or other medical management restrictions (CCIIO Bulletin, June 5, 2020).
Relaxed enforcement of time frames. The letter also indicates that on April 28, 2020, the Department of Labor (DOL) issued two notices giving plan participants, beneficiaries, and employers additional time to make critical health coverage and other decisions affecting benefits and to send certain required notices during the COVID-19 outbreak. One of the notices was issued jointly with the Department of the Treasury (Treasury Department) and the Internal Revenue Service (IRS). As stated in guidance issued on May 14, 2020, CMS concurs with the relief specified in these notices.
Thus, between March 1, 2020 and 60 days after the end of the COVID-19 National Emergency, or such other date announced by DOL or jointly by DOL and the Treasury Department/IRS in future notices, CMS will adopt a temporary policy of relaxed enforcement to extend similar time frames otherwise applicable to non-Federal governmental group health plans, and their participants and beneficiaries, under applicable provisions of the Public Health Service Act (PHSA). CMS encourages (but will not require) sponsors of non-Federal governmental plans to provide relief to participants and beneficiaries similar to that specified in the two notices.
Access to telehealth options. CMS also indicates that the use of telehealth and other remote care service options to obtain covered services is vital to combat the spread of COVID-19 by allowing individuals the ability to visit their health care providers from home. CMS strongly encourages all non-Federal governmental plans to expand and promote the use of telehealth and other remote care services by:
- notifying plan participants and beneficiaries of their availability;
- ensuring access to a robust suite of telehealth and other remote care services, including mental health and substance use disorder services; and
- covering telehealth and other remote care services without cost sharing or other medical management requirements.
CMS encourages plans to cover telehealth and other remote care services even if the specific covered services are not related to COVID-19. In addition, section 3701 of the CARES Act amends the laws applicable to high deductible health plans (HDHPs) and health savings accounts (HSAs) to provide temporary flexibility with respect to telehealth and other remote care services. As added by section 3701 of the CARES Act, Code Sec. 223(c)(2)(E) allows HSA-eligible HDHPs to cover telehealth and other remote care services without a deductible or with a deductible below the minimum annual deductible otherwise required by Code Sec. 223(c)(2)(A), for plan years beginning on or before December 31, 2021.
To the extent applicable state or local law prohibits non-Federal governmental plans from making mid-year changes, CMS has encouraged applicable state and local authorities to not take enforcement action against any plan that makes mid-year changes to provide greater coverage for telehealth or other remote care services or for diagnosis or treatment of COVID-19, or to reduce or eliminate cost-sharing requirements for these services. To the extent that plans make these changes, CMS strongly encourages such plans to promptly communicate this information to plan participants and beneficiaries, to ensure that plan participants and beneficiaries can benefit from these changes as soon as possible. CMS will not take enforcement action against any plan or issuer that makes such a modification to provide greater coverage for telehealth or other remote care services, or related to the diagnosis and/or treatment of COVID-19 without providing at least 60 days advance notice as required by PHSA Sec. 2715(d)(4) and final rules issued by the Departments regarding the Summary of Benefits and Coverage.
Prescription drug benefits. Lastly, in the letter, CMS also encourages non-Federal governmental plans that provide prescription drug benefits to lift fill restrictions when appropriate, while also taking into consideration patient safety risks associated with early refills for certain drug classes, such as opioids, benzodiazepines, and stimulants.
The Food and Drug Administration (FDA) monitors the prescription supply chain and provides detail on specific prescription drug shortages at https://www.fda.gov/drugs/drug-safety-and-availability/drug-shortages. CMS recommends that non-Federal governmental plans monitor this website to ensure plan participants and beneficiaries have access to the affected drugs or a therapeutic alternative.
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