Health & Welfare Plans Newsletter

March 13, 2020

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[Official Guidance]

Editor's Pick Text of CMS FAQs on Essential Health Benefit Coverage and the Coronavirus (COVID-19) (PDF)

"Q1: Do the Essential Health Benefits (EHB) currently include coverage for the diagnosis and treatment of COVID-19? A1: Yes....

"Q2: Is isolation and quarantine for the diagnosis of COVID-19 covered as EHB? A2: All EHB-benchmark plans cover medically necessary hospitalizations. Medically necessary isolation and quarantine required by and under the supervision of a medical provider during a hospital admission are generally covered as EHB....

"Q3: When a COVID-19 vaccine is available, will it be covered as EHB, and will issuers be permitted to require cost-sharing? A3: A COVID-19 vaccine does not currently exist. However, current law and regulations require specific vaccines to be covered as EHB without cost-sharing, and before meeting any applicable deductible, when the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC) recommends them. Under current regulations, if ACIP recommends a new vaccine, plans are not required to cover the vaccine until the beginning of the plan year that is 12 months after ACIP issues the recommendation. However, plans may voluntarily choose to cover a vaccine for COVID-19, with or without cost-sharing, prior to that date."

Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

CMS Publishes FAQs to Ensure Individuals, Issuers and States have Clear Information on Coverage Benefits for COVID-19

"The FAQs released today detail existing federal rules governing health coverage provided through the individual and small group insurance markets that apply to the diagnosis and treatment of COVID-19. The FAQs clarify which COVID-related services, including testing, isolation/quarantine, and vaccination, are generally currently covered as EHBs in these markets.... As questions and issues continue to come to CMS, they will be addressed and added to these FAQs."

Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

Disclosing Information About the Novel Coronavirus Under HIPAA

"It is important to remember that HIPAA's privacy rules extend only to covered entities (health plans, health care clearinghouses, and most health care providers) and their business associates. If an employee notifies his or her employer that that the employee is self-quarantining because he or she has tested positive for the virus, the employer would not be subject to HIPAA's requirements with regard to that information. But if an employer finds out that an employee has the virus from the employer's health plan, that information would be subject to HIPAA. Even if HIPAA does not apply, an entity may consider its requirements as a useful touchstone for how to handle personally identifiable information in difficult situations."

Ballard Spahr LLP

[Guidance Overview]

IRS Grants COVID-19 Relief for High-Deductible Health Plans

"While the relief granted by the Notice is intended to avoid financial disincentives that might impede testing for, and treatment of, COVID-19,  ... it appears that the relief is not intended to be permanent. Further, the IRS cautions that the Notice does not modify previous guidance related to the HDHP requirements in any manner other than with respect to the relief for testing and for treatment of COVID-19."

Epstein Becker Green

[Guidance Overview]

Never Fear, the IRS Is Here -- With Timely COVID-19 HSA Relief!

"After deciding whether and how to amend the health plan, the employer/plan sponsor must: [1] Amend health plan terms. [2] Seek approval of the plan amendment from any stop loss carrier. [3] Ensure participants are properly notified of the change.... [4] The plan's summary of benefits and coverage (SBC) must be updated to reflect the change to plan coverage below the deductible limit (or without any cost-sharing)."

Fox Rothschild LLP

[Guidance Overview]

Paid Leave and Coronavirus Considerations: Colorado Emergency Paid Sick Leave Rules in Effect

"Colorado has pushed ahead with a paid sick leave (PSL) mandate known as the HELP Rules. Although the HELP Rules will remain in effect for only a period of between 30 and 120 days (at least as currently drafted), their meteoric emergence onto the PSL scene has triggered a similar need for affected employers to rapidly react to the Rules' requirements."

Seyfarth Shaw LLP

Comprehensive and Updated FAQs for Employers on the Coronavirus (COVID-19)

Topics include: [1] Workplace safety issues; [2] Issues for workforces that travel; [3] Remote work; [4] International workforces; [5] Immigration issues; [6] Healthcare/HIPAA issues; [7] Benefits/group health plan administration; [8] Wage and hour issues; [9] Employee leave/ADA; [10] Discrimination/harassment/EEO issues; [11] Labor relations; [12] WARN Act/plant closings; [13] Workers' compensation; and [14] Educational institutions. Updated as of March 12 to address additional workplace law rights and responsibilities given the pandemic designation by the World Health Organization.

Fisher Phillips

Editor's Pick Health Insurance Providers Respond to Coronavirus (COVID-19)

"While most reported cases of COVID-19 are in other countries, the number of cases in the United States continues to increase. Here are some ways health insurance providers are taking action[.]' [Page includes summary of COVID-19 coverage being provided by approximately 50 health insurance providers, and includes links to each insurer"s website for further details.]

America's Health Insurance Plans [AHIP]

Key Group Health Plan Administration Considerations in Response to Coronavirus

"[E]mployers and plan administrators should consider coordinating with service providers to ensure that business continuity and disaster recovery plans are in place and have been recently tested.... [E]mployers ... could obtain sensitive health information outside of their role as group health plan administrators (e.g., an employee calls out from work because they are quarantined due to COVID-19 diagnosis or exposure). In those cases, HIPAA would generally not apply, but employers still must consider other state and federal privacy obligations when determining whether to disclose that information."

Nixon Peabody LLP

Employers Exploring Paid Sick Leave Options as Coronavirus Spreads

"Some employers may want to implement a paid leave policy in response to the public health emergency without making it permanent ... An employer that does not make provisions for paying employees who are quarantined or otherwise not willing or able to work won't face liability unless a state or local law requires paid leave ... Telecommuting [may be] a reasonable accommodation under the Americans with Disabilities Act (ADA), but ... being diagnosed with COVID-19 alone may not constitute a disability. However, telecommuting may be a reasonable accommodation for employees with disabilities whose medical conditions could be made worse by contracting the virus."

HR Daily Advisor

Teleworking and the COVID-19 Outbreak

"[T]he implementation of teleworking (i.e. remote working) is one way that certain equipped companies can keep their employees (and those they interact with) safe, without significantly impacting business operations. [This article highlights] the benefits of teleworking, where possible, and suggest best practices for employers looking to institute temporary teleworking arrangements."

Mintz

Coronavirus and Health Insurance Coverage: What Insurers Are Doing

"Many health insurance carriers are voluntarily giving customers more affordable access to diagnostic testing by waiving any related co-payments. America's Health Insurance Plans is keeping an up-to-date list of what different private health insurance carriers report they are doing for plan participants.... There are nuances to every health coverage situation based on funding sources, structure, size, location, and more."

MZQ Consulting, LLC

Benefits in General

How to Prep for an Employee Benefit Plan Audit

"[1] Meet with auditors early in the year ... [2] Prepare schedules or accumulate data during the year ... [3] Ask for an assistance letter ... [4] Bring the changes up early in the audit process so it's not a surprise when the audit starts ... [5] Let your auditors know what concerns you have about your plan ... [6] Hold frequent meetings with your internal team and the auditors during and after the audit fieldwork is completed ... [7] Have a debriefing meeting."

Meaden & Moore

Coronavirus Issues for Employee Benefit Plans

"What if the vendor that provides or administers employee benefits for its employees invokes [a force majeure clause] to excuse its performance due to a COVID-19 epidemic or quarantine affecting its workforce? ... [T]he result could be catastrophic. And to the extent an affected benefit is governed by [ERISA], the potential liability could be exponential.... [An] employer cannot and should not request that its group health plan provide information regarding an employee's illnesses or potential positive COVID-19 status. While there are exceptions to the Privacy Rule ... these exceptions are limited and very specific.... An employer may wish to consult employee benefits counsel to determine whether an employee who has contracted COVID-19 or who is subject to quarantine could qualify for a hardship distribution under its 401(k) plan."

Thompson Hine, via Bloomberg Law

Selected Discussions
on the BenefitsLink Message Boards

HSA Deductions from Severance Pay

"We have a former employer whose severance package includes payments over several years and health insurance. The employee has a HDHP and no other health insurance. Can they make HSA contributions through payroll deductions from their severance payments? We are making all of the payroll tax withholding and basically treating the severance payments like wages except they are not for services rendered, so they are not eligible for our 401K plan."

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Upcoming Events About Health & Welfare Plans

Mar. 16
Webcast
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Use of Individual Medicare Marketplaces for Public Sector Retiree Health Care: A Guide For Elected Officials
Center for State and Local Government Excellence
Mar. 17
Webcast
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Getting It Right - Know Your Fiduciary Responsibilities: Retirement and Health Plan Sponsors - Day 3
Employee Benefits Security Administration [EBSA], U.S. Department of Labor
Mar. 18
Texas
IRA and HSA Seminar
Ascensus
Mar. 19
Webcast
COVID-19 and HIPAA, HRA and HSA Workplace Developments: New Challenges and Opportunities for Plan Sponsors and Their Advisers
Worldwide Employee Benefits Network [WEB] - New York Chapter
Mar. 19
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Is Your Out-Of-Network Savings Solution Out of Date?
Zelis

Most Popular Items in the Previous Issue

Text of DOL Q&As on COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

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David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2020 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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