Baby Steps: Departments Issue Third Set of COVID FAQs

Seyfarth Synopsis:  On February 26, 2021, the Departments of Labor, Health and Human Services, and the Treasury (collectively, the Departments) jointly issued FAQS ABOUT FAMILIES FIRST CORONAVIRUS RESPONSE ACT AND CORONAVIRUS AID, RELIEF, AND ECONOMIC SECURITY ACT IMPLEMENTATION PART 44 regarding implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and other health coverage issues related to COVID-19.  These FAQs continue building the knowledge bank from prior FAQs, such as the ones issued in June 2020 (here)

Are things beginning to settle after the storm?  As plans get accustomed to our “new normal,” including covering COVID testing and vaccinations, the Departments further refine and clarify guidance on what precisely does (and does not) need to be covered, which helps employers in establishing a roadmap to make vaccines widely available to their employees inside the bounds of group health plan requirements. 

COVID-19 Testing

Under the FFCRA and CARES Act, group health plans are required to cover diagnostic testing and related items and services without cost-sharing requirements[1] and providers of diagnostic tests for COVID-19 must publish the cash price of a COVID-19 diagnostic test on the provider’s public internet website.  The FAQs address more specific fact patterns related to testing.  For example, the FAQs explain that: 

• The Departments previously said a plan cannot limit the number of tests that it will cover for an individual. (See Q/A-6 of FAQ 43). This is true, per these latest FAQs, even if the individual is asymptomatic and has no recent exposure.  No criteria or screening can be imposed on the coverage of tests.  And as long as the test is issued by a licensed health care provider, the location of the test does not matter (e.g., drive-through tests are covered).  (See Q/A-3).[2]  In addition, point-of-care (i.e., rapid) tests must be covered on the same basis as other tests. (See Q/A-4).
• The Departments previously distinguished testing for diagnostic purposes from testing for surveillance or employment purposes, stating that testing for diagnostic purposes (sought by the individual) has to be covered, but testing for general public surveillance or employment purposes (such as pursuant to a “return to work” program) does not. One way to distinguish is that a public surveillance or employment purpose is not primarily for individualized diagnosis and treatment.  These latest FAQs clarify that plans and issuers can make that distinction, and encourage them to communicate the difference in circumstances where testing is (or is not) covered.  (See Q/A-2.)

COVID-19 Vaccines

Most group health plans are required to cover preventive services without cost-sharing requirements.  This now includes any “qualifying coronavirus preventive service”, which is an item, service, or immunization that is intended to prevent or mitigate COVID-19 and that is, with respect to the individual involved—

• 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
• A vaccine that has in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC).

Plans must provide coverage without cost-sharing for the cost and administration of all COVID-19 vaccines that receive a recommendation - starting no later than 15 business days after the date the USPSTF or ACIP makes the recommendation regarding a qualifying coronavirus preventive service. (See Q/A-7 & Q/A-8).  As of the date of the FAQs, February 26, 2021, the ACIP had approved Pfizer BioNTech and Moderna COVID-19 vaccines.  Subsequently, on February 28, 2021 the ACIP recommended the Johnson and Johnson COVID-19 vaccine.  Even if a participant is not in a category of individuals prioritized for vaccination at the time he/she receives it, the plan must cover it.  (See Q/A-10). 

SBC Notice Requirements

Normally, if a plan makes a material modification in any of the terms of the plan or coverage that would affect the content of the Summary of Benefits and Coverage (SBC), the plan must provide notice of the modification to enrollees not later than 60 days prior to the date on which the modification becomes effective.  Although the Departments will not take enforcement action against a plan that does not provide at least 60 days’ advance notice of a material modification regarding the addition of qualifying coronavirus preventive services, plans should notify participants about coverage of qualifying coronavirus preventive services as soon as reasonably practicable.  (See Q/A-11).

Ways for Employers to Issue COVID Vaccines

Many employers have asked how they can sponsor programs to facilitate vaccination of their employees who are not enrolled in the employer’s major medical plan.  The answer as of now appears to be offering the vaccine through an Employer Assistance Program (EAP) or through an onsite clinic. 

Our December 2020 alert discussed employer sponsored vaccine programs (here) and the technical concern that such programs create a group health plan which then, in turn, is subject to the Affordable Care Act, COBRA, and other laws applicable to group health plans.  Certain “excepted benefits,” however, are exempt from many such requirements.  The Departments previously said that COVID testing under an EAP or onsite clinic would ameliorate the concern about operating a group health plan out of compliance with the ACA.  As anticipated in our alert, the Departments confirm in these FAQs that an EAP can offer COVID vaccines (and their administration) and still remain an excepted benefit.[3]  The same goes for on-site medical clinics.  (See Q/A-12 and 13). 

Also see our alert about offering incentives for vaccinations, here.

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We hope you find this helpful, and welcome you to contact your Seyfarth Employee Benefits lawyer with any questions about these FAQs or any other related guidance. 

[1]   See Issue 42 of the joint FAQs, here, and our blog post here.

[2]  State and local public health authorities can limit eligibility for tests if necessary to manage testing supplies, for example, but once the test is issued (at least for individual, diagnostic purposes), it has to be covered.  (See Q/A-1).

[3] The EAP would need to still comply with other applicable requirements, however.