Departments Issue New Guidance on COVID-19 Coverage Rules

On February 26, 2021, the Departments of Labor, Health and Human Services, and the Treasury (collectively, the "Departments") issued a new set of Frequently Asked Questions ("FAQs") that provides group health plan sponsors with additional guidance on the requirements to cover COVID-19 testing and vaccinations, pursuant to the Families First Coronavirus Response Act ("FFCRA") and the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"). The FAQs also provide guidance on SBC notice requirements and confirm that certain excepted benefits may be designed to offer COVID-19 vaccines without losing excepted benefit status.
 

COVID-19 Testing

The FFCRA requires group health plans to provide benefits for certain items and services related to COVID-19 testing without cost sharing, prior authorization, or other medical management requirements. This requirement applies to group health plans, including grandfathered plans under the Affordable Care Act, but it does not apply to retiree-only plans.

Under the FAQs, the Departments reiterate that group health plans are prohibited from imposing medical management requirements, including specific medical screening criteria, on coverage of COVID-19 diagnostic testing, when the purpose of the testing is for individualized diagnosis or treatment of COVID-19. Specifically, a plan may not condition coverage on the presence of symptoms or a recent known or suspected exposure. This guidance is intended to clarify that group health plans are required to cover COVID-19 testing that an individual may receive to confirm, for example, he or she is negative for COVID-19 prior to visiting family members. The plan must generally assume that receipt of the test reflects an "individualized clinical assessment," and must, therefore, cover the test without cost sharing, prior authorization, or other medical management requirements. This is true even if the test is sought and received through a state or locally administered testing site, including a drive-through location that does not require appointments.

The FAQs distinguish an individual's request for a COVID-19 test from testing individuals for general workplace safety or public health surveillance, neither of which are primarily intended for individualized diagnosis or treatment of COVID-19. Group health plans are not required to provide coverage of testing for public health surveillance or employment purposes, although they may certainly choose to provide this coverage.
 

COVID-19 Vaccinations

The CARES Act requires group health plans to cover without cost-sharing all COVID-19 vaccines that have received a recommendation that makes them a "qualifying coronavirus preventive service" with respect to the individual involved. Plans are not permitted to exclude coverage for (or impose cost sharing on) any qualifying coronavirus preventive services. This requirement applies only to non-grandfathered group health plans and does not apply to retiree-only plans.

As of the publication of the FAQs, there were two COVID-19 vaccines—the first produced by Pfizer-BioNTech and the second produced by Moderna—that had received a recommendation from the Advisory Committee on Immunization Practices (ACIP).  Both of these vaccines received a recommendation in December 2020. On March 2, 2021, ACIP made a recommendation with respect to a third vaccine produced by Johnson & Johnson. Therefore, non-grandfathered group health plans must cover all three vaccines without cost sharing no later than 15 business days after the date of the ACIP recommendation, which is considered in effect after it has been adopted by the Director of the Centers for Disease Control and Prevention.

The FAQs clarify that coverage is required regardless of whether the individual receiving the vaccine is eligible under the categories prioritized for early vaccination in his or her state or locality. Although certain groups are being prioritized for early vaccination while vaccine supply is limited, ACIP currently recommends vaccination of all individuals ages 16 and older for Pfizer and all individuals ages 18 and older for Moderna. The ACIP recommendation with respect to the Johnson & Johnson vaccine also applies to all individuals ages 18 and older.
 

Notices Regarding Vaccine Coverage

Group health plans normally must issue a revised Summary of Benefits and Coverage (SBC) to notify participants of any change to information listed on the SBC during the plan year. The revised SBC is required to be provided 60 days in advance of the change. However, the timeframe for providing coverage of newly approved COVID-19 vaccines is much shorter than 60 days. To the extent the expanded coverage impacts information on a group health plan's SBC, the Departments will not take enforcement action against any plan that does not meet the 60-day notice deadline with respect to newly covered COVID-19 vaccines. Any required notices should be provided as soon as reasonably practicable.
 

Excepted Benefits

Employers may utilize certain "excepted benefit" programs to offer their employees COVID-19 vaccines (including administration of the vaccine) without resulting in the loss of "excepted benefit" status. Excepted benefits are group health plans that are exempt from a number of federal statutory and regulatory requirements that apply to major medical plans under HIPAA and the Affordable Care Act.

An employee assistance program (EAP) that meets certain requirements, and which does not provide benefits that are significant in the nature of medical care, is an excepted benefit. The FAQs confirm that an EAP will not be considered to provide benefits that are significant in the nature of medical care solely because it offers benefits for COVID-19 vaccines and their administration (including when offered in combination with benefits for diagnosis and testing).

The FAQs also address vaccination programs through an onsite medical clinic. The Departments state simply that an onsite medical clinic is an excepted benefit in all circumstances, and therefore, this designation is not affected by an employer's decision to offer benefits for COVID-19 vaccines (and their administration) at the clinic.

If you have any questions regarding the FAQs or this e-bulletin, please contact Tara Sciscoe, Chris Sears, Shalina Schaefer, or your Ice Miller Employee Benefits attorney.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.