The Families First Coronavirus Response Act (“FFCRA”) enacted March 18 provides a combination of benefits to help employees during the COVID-19 pandemic:

• Mandated benefits under employer health plans,
• Paid sick leave benefits (up to 80 hours) – click here for our discussion of the paid sick leave benefits,
• FMLA benefits (up to 12 weeks with a combination of paid and unpaid leave) – click here for our discussion of the FMLA benefits,
• Tax benefits to ease the cost to certain small employers of providing health care coverage under the newly expanded sick leave and FMLA benefits noted above click here for a discussion of the FMLA benefits – click here for our discussion of the small employer tax credits.

The following is a summary of the mandated benefits COVID-19 testing requirements applicable to employer health plans.

COVID-19 Diagnostic Testing Coverage Requirements

Most group health plans[1] and group insurance coverage are required to cover COVID-19 testing related items and services without imposing any cost sharing (including deductibles, copayments, and coinsurance) or prior authorization or medical management requirements. The following is a summary of the key points of the FFCRA requirement:

1. Coverage of Diagnostic Items and Services without Cost-Sharing. The specific items and services to which the coverage mandate applies include:
   1. “In vitro diagnostic products”[2] used for the detection of SARS–CoV–2 or diagnosis of the virus that causes COVID–19 that are approved, cleared, or authorized under section 510(k), 513, 515 or 564 of the Federal Food, Drug, and Cosmetic Act;
   2. The administration of such in vitro diagnostic products; and
   3. Items and services furnished to an individual during health care provider office visits (including both in-person and telehealth visits), urgent care center visits, and emergency room visits that result in an order for or administration of covered in vitro diagnostic products, but only to the extent such items and services relate (i) to the furnishing or administration of such product or (ii) to the evaluation of such individual for purposes of determining the need of such individual for such product.
2. Impact on High-Deductible Health Plans (“HDHPs”). Prior guidance expanded the ability of HDHPs to provide coverage for medical services related to COVID-19 before satisfaction of deduction requirements without jeopardizing their HDHP status.  Click here for our discussion of this relief.  That prior guidance does not fully coordinate with the requirements of the FFCRA, however, it is reasonable to assume that the relief would extend to coverage of the items and services required under the FFCRA.
3. Enforcement. Enforcement is delegated to the Secretaries of the Department of Health and Human Services, the Department of Labor, and the Treasury. These agencies are authorized to issue implementing guidance.
4. Effective Date. The coverage requirements are effective for services rendered on or after enactment of the FFCRA (March 18, 2020) and will continue to apply during the public health emergency declared on January 31, 2020.

Action Steps for Employers

Many employers have already taken action to provide cost-free COVID-19 testing under their group health plans.  Those employers, as well employers who have not yet taken action, should review and implement the following steps, as applicable.

1. Review their plans and work with their insurers or third party administrators to implement these FFCRA requirements;
2. Amend plan documents to reflect the COVD-19 testing benefits and, if applicable, coverage rights during newly available FMLA leave;
3. Update SPDS; and
4. Consider providing additional communications to ensure participants are aware of these critical benefits as quickly as possible.

[1] Notably, these mandates do not apply to retiree-only health plans or to HIPAA excepted benefit plans.

[2] “In vitro diagnostic products” are defined in 21 CFR § 890.3(a).

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