COVID-19 preventive services

The ACA requires non-grandfathered group health plans to provide certain preventive service without cost sharing. This includes services with an “A” or “B” recommendation from the U.S. Preventive Services Task Force (USPSTF) and immunizations recommended by the Advisory Committee on Immunization Practices (ACIP) and adopted by the Director of the Centers for Disease Control and Prevention.

The CARES Act requires that COVID-19-related preventive services recommended by the USPSTF or the ACIP be covered by non-grandfathered group health plans (and any insurers of such plans) within 15 business days after any such recommendation is made. This is a much quicker deadline than applicable to other ACA preventive services.

The tri-Department rule adds additional requirements relating to out-of-network providers that will sunset at the end of the current public health emergency (currently, January 21, 2021, but it may be extended).

In- and out-of-network providers

The COVID-19 preventive service must be covered without cost sharing whether it is provided by an in-network or out-of-network provider. The Departments note that, in the short term, newly developed preventive services, such as vaccines, may only be available from a narrow range of providers, in part due to specialized storage and administration requirements. As a result, to slow transmission of the disease, it is important that individuals be able to receive these services without cost sharing from any available provider.

Reimbursement rate for out-of-network providers

When provided by an out-of-network provider, the plan or insurer must reimburse the provider a “reasonable amount,” as determined in comparison to prevailing market rates for such services. The Departments note that they would consider the Medicare rate to be reasonable.

Integral, related services must also be covered

In the discussion preceding the regulatory text, the Departments clarify that plans and insurers must cover items or services that are “integral” to the furnishing of any required preventive service, including those related to COVID-19. This means that plans and insurers must cover recommended vaccines, as well as their administration, regardless of how the administration is billed or whether it takes multiple doses.

Administration of a vaccine must be covered in instances where a third party, such as the federal government, pays for the actual vaccine dose. Moreover, if a preventive service, including a COVID-19 vaccine, is not billed separately from an office visit, and the primary purpose of the office visit is to deliver the recommended service or vaccine, the plan or insurer may not charge cost sharing for the office visit.

COVID-19 tests provided by out-of-network providers

The CARES Act requires group health plans and insurers to pay out-of-network providers of COVID-19 diagnostic tests the “cash price” (or any lower negotiated price) posted on the provider’s public website during the public health emergency. To facilitate this, the CARES Act also requires the provider to post this cash price on its website and authorizes HHS to impose a civil monetary penalty for failure to do so.

Provider of diagnostic tests for COVID-19

The new HHS rule defines a “provider of a diagnostic test for COVID-19” as a facility that performs one or more COVID-19 tests. HHS explains that this means the laboratory analysis of the specimen, not the visit to evaluate the need for the test or the collection of the specimen. (Those items would also have to be covered by the plan without cost sharing, but reimbursement of the out-of-network provider is not governed by the cash-price rule.) HHS notes that the tests in question are the same molecular, antigen and serological tests that plans and insurers are required to cover without cost sharing during the public health emergency.

The cash price

The HHS rule defines the “cash price” as the charge that applies to an individual who pays cash (or cash equivalent) for the test. HHS explains that this should be the “walk-in” rate that applies to self-pay individuals, which should generally be similar to or lower than rates negotiated with plans or insurers.

The posting requirement

The HHS rule includes detailed requirements for what type of information must be posted on the provider’s website (e.g., a plain language description of the test, the billing code for the test and the cash price), as well as where and how the information should be displayed (i.e., in a conspicuous location on a searchable homepage).

Providers that do not have a website are required to respond in writing within two business days of a request, and, if the test provider’s location is accessible to the public, post the information prominently on a sign at that location.

Enforcement

HHS states that it will monitor compliance with these requirements, including through evaluation of complaints. Steps that will be taken to enforce these requirements include written warnings, the submission of a corrective action plan, and civil monetary penalties.

Implications for plan sponsors

Plan sponsors, like the public generally, will want to pay close attention to the approval of any vaccine or any other recommended preventive service. For a vaccine, the 15-day deadline will be triggered by approval from the ACIP/CDC not the FDA. Plan administrators processing claims for out-of-network COVID-19 tests may find it easier to locate the cash price for these tests now that HHS has issued clear rules about how providers must make these prices public.