On February 26, 2021, the Departments of Labor, Health and Human Services (HHS), and the Treasury issued Frequently Asked Questions (FAQs) on the implementation of the Families First Coronavirus Response Act (“FFCRA”), the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), and other health coverage issuesrelated to COVID-19.

COVID-19 Diagnostic Testing

FFCRA requires group health plans and health insurance issuers offering group or individual health insurance coverage, including grandfathered health plans (collectively, “Plans”) to cover certain items and services related to the testing and diagnosis of COVID-19 without cost-sharing, prior authorization, or other medical management requirements. The CARES Act expanded the range of diagnostic items and services that Plans must cover.  The CARES Act also requires Plans to reimburse any provider of COVID-19 diagnostic testing at an amount that equals the negotiated rate or, if the Plan does not have a negotiated rate with the provider, the cash price for such service that is listed by the provider on a public website.

Among other topics, the FAQs address:

  • Plans cannot require the presence of symptoms or a recent known or suspected exposure to COVID-19, or otherwise impose medical screening criteria on coverage for tests. Plans are to assume that, when an individual seeks and receives a COVID-19 test from a licensed or authorized provider or is referred for a test by such a provider, the receipt of the test reflects an “individualized clinical assessment” and the test should be covered without cost sharing, prior authorization, or other medical management requirements. This coverage obligation includes tests obtained from a state- or locality-administered site, a “drive-through” site, and/or a site that does not require appointments.
  • Plans may distinguish between COVID-19 diagnostic testing of asymptomatic people that must be covered, and coverage for testing for general workplace health and safety, for public health surveillance, or for other purposes not primarily intended for individualized diagnosis or treatment of COVID-19. Per the FAQs, Plans are not required to cover testing for public health surveillance or employment purposes.

Rapid Coverage of Preventive Services for Coronavirus

Section 3203 of the CARES Act requires non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage (collectively, “Non-Grandfathered Plans”) to cover, without cost-sharing requirements, any qualifying coronavirus preventive services.

Among other topics, the FAQs address:

  • Non-Grandfathered Plans must provide coverage without cost sharing for all COVID-19 vaccines that have received a recommendation that makes them a qualifying coronavirus preventive service with respect to the individual involved, and their administration.
  • Coverage of COVID-19 vaccines must begin no later than 15 business days after the date the United States Preventive Services Task Force or the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention makes an applicable recommendation regarding a qualifying coronavirus preventive service.
  • Non-Grandfathered Plans may not deny coverage of recommended COVID-19 vaccines because an individual is not in a category recommended for early vaccination.
  • A decision by an individual’s provider (including a provider integrated with a health plan) to decline to give the vaccine to someone because he or she is not within a prioritization category is not an adverse benefit determination made by a group health plan or health insurance issuer. Therefore, the provider’s decision is not subject to internal claims and appeals and external review requirements.

This article is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, but which are not referenced in this article.

Check out Sheppard Mullin’s Coronavirus Insights Portal which aggregates the firm’s various COVID-19 blog posts on a broad range of topics. Click here to view and subscribe.