Senate COVID-19 Legislation a Good Start, Key Provisions Must Be Added Before Bill Becomes Law

Washington, DC – This week, Senate Republicans introduced their proposal for the next tranche of legislation to address the COVID-19 pandemic, the “Health; Economic Assistance; Liability Protection; and Schools (HEALS) Act,” and are negotiating with House leadership on its proposal, the HEROES Act (H.R. 6800). The ERISA Industry Committee (ERIC) is pleased to see the legislative process progressing and looks forward to working with both the Senate and the House to advance measures that support the ability of employers to provide needed benefits to workers and families.

“We applaud Senate leadership for including in the HEALS Act key priorities that the employer community strongly supports, including proposals ERIC has advocated for since the emergence of the COVID crisis,” said Annette Guarisco Fildes, President and CEO of ERIC. “While some HEALS Act measures knock down barriers that prevent employers from helping their workforce, more is needed to ensure that patients do not suffer and that employers can provide better employee benefits. We urge the Senate to add specific employee benefit protections as the legislative process continues, and we commit to working with Congress to advance policies that help large employers provide benefits to nationwide workforces and families.”

ERIC strongly supports the following key provisions in the HEALS Act as introduced that will help address the pandemic and protect workers:

  • Liability Protections: The HEALS Act includes comprehensive protection from lawsuits for employers seeking to reopen and relaunch the economy, including provisions ERIC called for to prevent abusive lawsuits related to COVID testing and making workplaces safe for workers and the public. The bill also protects the ability of employers to provide testing and assistance to their independent contractors and others without inadvertently creating an employment relationship. However, we hope to work with Congress to expand these protections specifically to include preventing abusive COVID lawsuits pursuant to COBRA, HIPAA, ERISA, and other laws governing employee benefits.

  • Telehealth: The legislation codifies and extends temporary guidance allowing employers to offer telehealth benefits to part-time and other workers not eligible for their employer’s health plans. The legislation is currently limited, not allowing employers to offer telehealth to those who are eligible for the health plan but are currently unenrolled, such as young workers still on a parent’s plan, or an individual enrolled in a spouse’s plan. We hope that before passage, this provision will be improved to allow any worker to participate in this employer benefit, to clarify that a telehealth-only plan is an “excepted benefit” under the Affordable Care Act, and to make the changes permanent rather than temporary.

  • FSA Rollover: The bill allows workers to roll over funds in their flexible spending arrangements (FSAs) into the next plan year, giving many workers an opportunity to spend their funds toward the following year’s deductible or other health expenses rather than risk forfeiture under the statutory “use-it-or-lose-it” rule for these accounts.

  • Onsite Clinics: The HEALS Act temporarily allows workers (and their spouses) in HSA-qualified health plans to receive limited care at worksite clinics at a discount, without threatening their HSA-eligibility. As employers in many industries are operating onsite clinics, investing in the health of their workforce, and making it easier for patients to obtain needed care, ERIC hopes to work with Congress to make this provision permanent, apply it to all beneficiaries, and expand the scope of care that can be provided at onsite clinics to HSA plan beneficiaries.

Congress has the opportunity to provide meaningful assistance to patients during the COVID-19 pandemic, by eradicating price gouging for medical care, ending the surprise billing crisis, or the opaque and dense health care system. We ask that these specific protections be added to the HEALS Act as negotiations proceed: 

  • Surprise Medical Billing and Transparency: A market-based solution to surprise billing is already supported by a majority in Congress and should be added to the HEALS Act. Anything less is a grave disservice to patients. This must be accompanied by provisions to ensure patients and employers have access to a completely transparent health care system, including the ability to see the real prices they pay for prescription drugs, hospital costs, and provider services – before those costs have been incurred. It would be a missed opportunity for Congress to leave for the August recess without solving the surprise billing crisis.

  • COBRA Assistance: With millions of Americans out of a job, Congress should offer comprehensive financial assistance to those separated workers who wish to stay on their employers’ health plans. COBRA coverage is convenient but typically more expensive and thus not chosen except by patients with serious conditions. These patients need financial support, and sufficient federal subsidies can protect all workers on an employer’s health plan from unexpected premium increases brought on by the COVID-19 economic crisis.

  • Testing: While the HEALS Act does contain limited funding to support increased COVID-19 testing, the funds are insufficient and are not accompanied by a regime sufficient to address this national crisis. Employers need significant assistance to relaunch the economy and reopen worksites at full capacity, including: prompt access to tests and components, waivers of state and federal laws that disrupt our ability to test or to act on the result of tests, timely and accurate test results, federal guidelines on testing (both diagnostic and serological) best practices and appropriate usage, and real enforcement of requirements that testing costs be reasonable.

  • Price Gouging: Employers know that it is critical to test, diagnose, and treat patients in order to contain this crisis. However, employers and patients are already falling prey to unscrupulous practices in the health care system. Congress must include provisions to enact and enforce the Administration’s priority of controlling the costs of this testing and treatment, and punishing providers who attempt to price-gouge patients or third-party payers. Without these protections, many patients may never obtain or receive the care they need, and the COVID-19 crisis will last longer and cause more suffering than otherwise.

Employers realize these are significant and difficult requests of Congress. However, these are unprecedented times in an unprecedented crisis, and Congress has the opportunity now to ensure that this legislative package includes protection for patients and their employee benefit plans. Patients and employers cannot wait.

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All media inquiries to The ERISA Industry Committee should be directed to:

Kelly Broadway, 202.627.1918, kbroadway@eric.org

About the ERISA Industry Committee
ERIC is a national advocacy organization that exclusively represents large employers that provide health, retirement, paid leave, and other benefits to their nationwide workforces. With member companies that are leaders in every sector of the economy, ERIC advocates on the federal, state, and local levels for policies that promote flexibility and uniformity in the administration of their employee benefit plans.