The COVID-19 pandemic has created a lot of confusion for employers (and everyone else, for that matter), including what they can and can't ask about employees' personal health, as well as what screening measures they can legally implement. Many employers have opted to make COVID-19 testing a requirement for employees returning to work, raising another question: who's responsible for paying for such tests?

The Department of Health and Human Services, in conjunction with the Department of Labor, and Department of the Treasury states, this week released new guidance that answers this question and many others.

The Families First Coronavirus Response Act (FFCRA), as well as the CARES Act, both included provisions related to cost-sharing for COVID-19 treatments and tests. Among them was a requirement that insurers cover the cost of testing–but only when ordered by an individual's health care provider.

According to the guidance, "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 is beyond the scope of section 6001 of the FFCRA."

Insurers may opt to pay for such tests anyway, as a precautionary measure. America's Health Insurance Plans, however, is calling on more government support to cover the costs, which it says could be between $6 billion and $25 billion annually.

The guidance also addresses the issue of balance billing related to testing. While the CARES Act is clear in its prohibition of balance billing for testing, the guidance notes that "section 3202(a) of the CARES Act does not preclude balance billing for items and services not subject to section 3202(a), although balance billing may be prohibited by applicable state law and other applicable contractual agreements."

In addition, the guidance also clears the way for large employers to offer telehealth benefits to employees not eligible for employer-sponsored health insurance. "In light of the critical need to minimize the risk of exposure to and community spread of SARS-CoV-2, for the duration of any plan year beginning before the end of the public health emergency related to COVID-19, the Departments are providing relief for a group health plan (and health insurance coverage offered in connection with a group health plan) that solely provides benefits for telehealth or other remote care services from the group market reforms under part 7 of ERISA, title XXVII of the PHS Act, and chapter 100 of the Internal Revenue Code (the Code).

"This relief is limited to telehealth and other remote care service arrangements that are sponsored by a large employer (as defined under section 2791(e)(2) of the PHS Act) and that are offered only to employees (or their dependents) who are not eligible for coverage under any other group health plan offered by that employer."

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Insurers not required to pay for mandatory employer COVID-19 tests, HHS says

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