Effective January 15, 2022, employer-sponsored group health plans and health insurers are required to provide reimbursement to plan participants, or to provide coverage to plan participants, for over-the-counter (“OTC”) COVID-19 self-tests. No cost sharing (such as deductibles), prior authorization or other medical management requirements can apply.
These and other explanations of coverage requirements for OTC COVID-19 testing are addressed in guidance issued in a “Frequently Asked Questions” format on January 10, 2022. The FAQs were prepared jointly by the Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the “Departments”) regarding implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the Affordable Care Act.
Some of the important issues addressed in the FAQs include the following:
- A plan or insurer is not required to provide coverage by reimbursing sellers of OTC COVID-19 tests directly (i.e., direct coverage). Instead it may require a participant, beneficiary, or enrollee to submit a claim for reimbursement to the plan or insurer. However, the FAQs state that plans and insurers are strongly encouraged to provide direct coverage for OTC COVID-19 tests without requiring participants, beneficiaries, or enrollees to provide upfront payment and seek reimbursement.
- To the extent a plan or insurer provides direct coverage for tests, it may not limit coverage to only tests that are provided through preferred pharmacies or other retailers, and must take reasonable steps to ensure that participants have adequate access to tests through an adequate number of retail locations (including in-person and online locations).
- Reimbursement of tests from non-preferred pharmacies or other retailers may be limited to no less than the actual price, or $12 per test (whichever is lower); however plans and insurers may elect to provide more generous reimbursement up to the actual price of the test.
- A plan or insurer may limit the number of tests covered to no less than 8 tests per 30-day period.
- Plans and insurers are permitted to address suspected fraud and abuse. The FAQs state, for example, that a plan or insurer may require (i) an attestation that the OTC COVID-19 test was purchased by the participant for personal use, not for employment purposes, and (ii) reasonable documentation (such as a UPC code) of proof of purchase with a claim for reimbursement.
The Centers for Medicare and Medicaid Services also issued a set of FAQs on January 10, 2022, explaining to consumers “How to get your At-Home Over-The-Counter COVID-19 Test for Free.”
We will continue to keep you updated regarding new developments on these issues. Given the nationwide lack of availability of tests, and many insurers indicating that they cannot meet the January 15 deadline, it may be a rocky start for this program.
This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.
Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.
Brian T. Gallagher is an attorney at Fraser Trebilcock specializing in ERISA, Employee Benefits, and Deferred and Executive Compensation. He can be reached at (517) 377-0886 or bgallagher@fraserlawfirm.com.
Lauren D. Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.