New Guidance Requires Free COVID-19 Testing and Vaccines

On February 26, 2021, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury collectively issued new frequently asked questions (FAQs) regarding the implementation of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and other health coverage issues related to COVID-19. Previous blogs posts reviewed the FAQs on COVID-19 group health plan coverage implementation and preventative care mandates. The FAQs expand upon prior guidance related to the requirement under the FFCRA that group health plans and health insurance issuers (health plans) cover COVID-19 diagnostic testing and vaccinations, and certain related issues.

COVID-19 Testing

  • Required Coverage: COVID-19 Testing for Individual Diagnosis or Treatment – The FAQs build upon the FFCRA and previously issued FAQs (Parts 42 and 43) that require health plans to cover all diagnostic testing for COVID-19 free of charge (no deductible, no copayment and no coinsurance charges) during the period March 18, 2020 through the end of the COVID-19 public health emergency.1 The FAQs clarify that health plans must cover testing for the purpose of individual diagnosis or treatment without any prior authorization or other medical management requirements, including for asymptomatic individuals with no known or suspected exposure to COVID-19. This includes coverage for COVID-19 testing at state- or locality-administered testing sites or drive-through sites, as well as coverage for point-of-care tests.
  • Optional Coverage: COVID-19 Testing for Other Purposes – Health plans may, but are not required to, provide coverage of testing for public health surveillance, general workplace health and safety, or for other purposes not primarily intended for individualized diagnosis or treatment of COVID-19. Health plans should clearly communicate to participants any such limitations on coverage.

Rapid Coverage of Preventive Services for COVID-19, including Vaccines

  • Expedited Required Coverage for Preventive Care – Health plans that are not grandfathered under the Affordable Care Act must provide coverage without cost sharing for any “qualifying coronavirus preventive service,” which includes an item, service, or immunization that is intended to prevent or mitigate COVID-19 and that is:
    • An evidence-based item or service that has in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (USPSTF); or
    • An immunization that has in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP).

    Health plans must provide the coverage for a qualifying coronavirus preventive service, including the currently recommended COVID-19 vaccines beginning no later than 15 business days after the USPSTF or ACIP makes a recommendation.

  • ACIP-Recommended Vaccinations − Currently, three COVID-19 vaccines have received a recommendation from ACIP. Even if a health plan is not billed for the vaccine, the health plan must still cover any vaccine administration fee. The FAQs clarify that health plans cannot deny coverage of recommended COVID-19 vaccinations because an individual is not in a category recommended for early vaccination. However, a decision by a provider to decline to give the vaccine to someone that is not within a prioritization category will not constitute an adverse benefit determination.

Other Related Issues

  • Summary of Benefits and Coverage (SBC) The FAQ notes that the DOL, HHS and the Treasury will not take enforcement action if a health plan covers a COVID-19 vaccine or other qualifying coronavirus preventive service prior to providing the required 60-day advance notice of a material modification made to the health plan’s benefits that would affect the content of the health plan’s SBC and that occurs other than in connection with open enrollment. However, health plans must provide any required notice of material modification as soon as reasonably practicable.
  • Employee Assistance Programs/On-Site Medical Clinics − The FAQs indicate that employers may offer benefits for COVID-19 vaccines (and their administration) under an excepted benefit employee assistance program (EAP) or at an on-site medical clinic without jeopardizing the EAP’s or on-site medical clinic’s status as an excepted benefit. This new guidance provides some relief for an employer that wishes to cover the cost of COVID-19 vaccines for employees even if they are not enrolled in the employer’s health plan, but was concerned that doing so could violate certain market reform mandates under the Affordable Care Act.

Health plans should ensure that benefits are administered in a manner consistent with this new guidance. If you have any questions regarding these new FAQs, please reach out to your Faegre Drinker benefits and executive compensation attorney for more information.

[1] The Acting HHS Secretary has announced the public health emergency is likely to remain in place for all of 2021, and HHS will provide 60 days’ notice prior to its termination or expiration.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

About Author: Erik Vogt

Erik Vogt advises public, private and nonprofit companies in the design and administration of retirement plans, health and welfare plans, and executive compensation arrangements. Erik also counsels clients on mergers and acquisitions and writes frequently on legal developments impacting benefit plans, executive compensation and related matters. View all posts by and

About Author: Mark Rosenfeld

An employee benefits lawyer, Mark Rosenfeld counsels employers, plan sponsors and administrators on the design, administration and governance of retirement plans (such as 401(k) plans) and welfare plans (such as health plans). He also drafts executive compensation arrangements, equity incentive plans and severance plans. Mark provides detailed analysis and advice on IRS Code § 280G golden parachute provisions in M&A transactions. View all posts by and

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