The Health Law Ticker

On March 5th, the Department of Managed Health Care (DMHC) issued its first COVID-19 related All-Plan Letter (APL 20-006) regarding screening and testing. The DMHC directed all full service commercial and Medi-Cal health care service plans to immediately reduce cost-sharing to zero for all medically necessary screening and testing for COVID-19. Of note, the APL directed that health plans “ensure” provider networks are adequate to handle an increase in the need for healthcare services, including offering access to out of network services as COVID-19 cases increase. The Department also directed that health plans work with contracted provider networks to increase capacity for COVID-19 cases through utilizing telehealth services where appropriate.

As conditions deteriorated, the DMHC issued APL 20-007 on March 12th encouraging health plans to take actions to facilitate the delivery of healthcare services in a manner that decreases the need for in-person visits, for the duration of the state of emergency. Specifically, if a health plan has pre-authorization or precertification requirements that contracted providers must meet before the plan will cover care delivered via telehealth, as defined in Business and Professions Code section 2290.5, the plan should either expedite the plan’s review process or relax those requirements to allow the plan to more quickly approve providers to offer services via telehealth. Additionally, the Department directed that Plans should waive applicable cost-sharing for care delivered via telehealth, notwithstanding that a cost-share might apply if the provider delivered the care in-person.

On March 16th, seven Bay Area counties issued shelter-in-residence orders to mitigate the spread of COVID-19. Shortly thereafter on March 18th, DMHC issued APL 20-008 regarding health plan operations. The APL affirmed that health plans must continue to provide health care services and perform health plan functions. Of particular importance, however, the DMHC acknowledged that plans may choose to delay some services, such as elective surgeries or other non-urgent procedures, during the emergency. The Department noted that such delays are permissible provided the referring or treating provider, or the health professional providing triage or screening services, as applicable, has determined and noted in the relevant record that a longer waiting time will not have a detrimental impact on the health of the enrollee. (Cal. Code Regs., title 28, section 1300.67.2.2 (c)(5)(G).)

In addition to permitting delays in some services, the DMHC also relaxed requirements around requirements for hard-copy notices to enrollees and providers. Specifically, the Department noted that if a plan does not have personnel available to mail hard-copy information, it is sufficient to communicate with enrollees and providers electronically and/or telephonically, so long as the plan maintains a log or record of the communications.

The DMHC also issued APL 20-009 on March 18th regarding reimbursement for telehealth services. The APL directs that health plans reimburse providers at the same rate, whether service is provided in-person or through telehealth, if the service is the same regardless of the modality of delivery, as determined by the provider’s description of the service on the claim. Further, for services provided via telehealth, a health plan may not subject enrollees to cost-sharing greater than the same cost-sharing if the service were provided in person. Lastly, health plans are required to provide the same amount of reimbursement for services rendered via telephone as they would if the service were rendered via video, provided the modality by which the service is rendered (telephone versus video) is medically appropriate for the enrollee.

Of particular significance, the DMHC issued APL 20-010 on March 21st. The day before, Covered California announced it was launching a special enrollment period to offer individual health insurance coverage to all Californians as the state faces a surge in cases of COVID-19. In support of those efforts, the DMHC directed that all health plans offering individual, non-grandfathered commercial health benefit coverage, whether through Covered California or off- Exchange, to offer a special enrollment period, effective immediately. The special enrollment period will run through June 30, 2020, and is not limited to individuals who have experienced a triggering event.

On April 13, the DMHC issued APL 20-015 providing for a temporary extension of required health plan filing deadlines during the COVID-19 emergency. Through the APL, the Department has taken the following action:

• Quarterly Grievance Reports – extended to no later than 90 days after the end of each quarter;
• Arbitration Decisions – unredacted arbitration decisions must be submitted within the date of the decision and redacted arbitration; decisions must be submitted within 60 days after the close of the quarter in which they should have been submitted;
• Quarterly Claims Settlement Practices Report – due date extended to June 20, 2020;
• Plan filings related to health plan response to COVID-19, such as provider contract changes, administrative services agreement/vendor contract changes, and marketing and advertising materials, will be considered “file and use” filings;
• Unless specifically required by law to be provided by mail, to the extent health plans have valid email addresses provided by enrollees, subscribers, employers, and providers, Plans may send notifications via electronic mail rather than via mail/hard copy;
• Standard Formulary Template Implementation – go-live date extended to July 1, 2020; and
• Timely Access Compliance and Annual Network Reporting – extended to May 1, 2020.

This public health crisis is evolving day by day and we are likely to see the issuance of additional Department All Plan Letters in response. We will keep our COVID-19 response page up to date and are here to help our clients navigate the complexities of the current environment.