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Departments issue new FAQs on FFCRA and CARES Act implementation

Health and Benefits
COVID 19 Coronavirus

By Anu Gogna and Benjamin Lupin | July 10, 2020

The FAQs will help employers ensure they are complying with the COVID-19 testing mandate in the FFCRA, as amended by the CARES Act.

The Departments of Labor (DOL), Health and Human Services (HHS), and Treasury have issued a new set of FAQs on implementing the requirements in the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act as well as other health coverage issues related to COVID-19.

The guidance, which is effective immediately, covers: 1) the testing mandate in the FFCRA and the CARES Act, 2) group health plan notice requirements, 3) telehealth and other remote care services, 4) “grandfathered health plans,”1 5) mental health parity testing, 6) wellness programs, and 7) individual coverage health reimbursement arrangement (ICHRA) notice requirements.


The FAQs clarify several provisions in the FFCRA and CARES Act regarding the COVID-19 testing mandate:

  • Self-insured group health plans. The FAQs clarify that the COVID-19 testing mandate applies to both fully insured and self-insured group health plans.
  • COVID-19 tests that must be covered. The FAQs specify the types of COVID-19 tests that must be covered and provide links to Food and Drug Administration webpages that list approved tests. The covered tests fall into four categories:

    1. A test approved, cleared or authorized under the Federal Food, Drug, and Cosmetic Act
    2. A test where the developer has requested, or intends to request, emergency use authorization under the Federal Food, Drug, and Cosmetic Act, unless and until the emergency use authorization request has been denied or the developer of such test does not submit a request under such section within a reasonable time frame
    3. A test that is developed in and authorized by a state that has notified the secretary of HHS of its intention to review tests intended to diagnose COVID–19
    4. Other tests that the secretary of HHS determines appropriate in guidance
  • Attending health care provider. Under the FFCRA, certain items and services must be covered “when medically appropriate for the individual, as determined by the individual’s attending health care provider.” The departments clarify that an attending health care provider need not be “directly” responsible for providing care to the patient, as long as the provider makes an individualized clinical assessment to determine whether the COVID-19 test is medically appropriate in accordance with current accepted standards of medical practice. A plan, issuer, hospital or managed care organization is not an attending provider.
  • At-home testing. The FAQs clarify that at-home COVID-19 tests must be covered without cost sharing, prior authorization or other medical management requirements when ordered by an attending health care provider and deemed to be medically necessary.
  • COVID-19 testing for surveillance or employment purposes. The FAQs specify that COVID-19 testing to screen for general workplace health and safety, public health surveillance, or any other purpose not primarily intended to diagnose or treat COVID-19 or another health condition is beyond the scope of the FFCRA testing requirements.
  • Multiple COVID-19 diagnostic tests. The guidance clarifies that if an individual receives multiple diagnostic tests for COVID-19, then each test must be covered under the testing mandate, provided they are diagnostic and deemed medically appropriate by the attending health care provider in accordance with current accepted standards of medical practice.
  • COVID-19 testing facility fee. The FAQs specify that a facility fee for a visit that results in an order for or administration of a COVID-19 diagnostic test must be covered by the plan or issuer with no cost sharing. A facility fee is a fee for the use of facilities or equipment not owned by a provider or that are owned by a hospital.
  • Balance billing for COVID-19 diagnostic tests. Under the CARES Act, a plan must reimburse a provider for COVID-19 testing at either the negotiated rate or the cash price listed on a public website. The FAQs clarify that this reimbursement should be considered payment in full, with no cost sharing or other balance due; this applies only to items and services related to the COVID-19 testing mandate.
  • Reimbursements for out-of-network providers. Plans may seek to negotiate a determined rate for COVID-19 testing furnished by out-of-network providers, and state laws governing reimbursements may apply. For example, many states have balance billing laws that set forth dispute resolution processes for issuers and providers that would continue to apply.

    The FAQs also clarify that an out-of-network provider of COVID-19 testing that does not have a negotiated rate with a plan and has not published the cash price on a public website could be subject to a penalty of up to $300 per day.

  • Reimbursements for out-of-network emergency room services. The FAQs provide that when an individual receives a COVID-19 test in an emergency room of an out-of-network hospital, a plan is only required to reimburse the cash price listed on a public website (or an otherwise negotiated rate).

Group health plan notice requirements

In previously issued FAQs, the departments announced they would not take enforcement action against any plan for failing to give at least 60 days’ advance notice of plan changes to provide greater coverage for the diagnosis and/or treatment of COVID-19, or for telehealth and other remote care services, provided the notice is given as soon as reasonably practicable. The new FAQs clarify that if a plan reverses these changes after the COVID-19 public health emergency is no longer in effect, it will have satisfied its advanced notification requirement under the summary of benefits and coverage rules if 1) the plan previously notified participants of the general duration of the additional benefit coverage or reduced cost sharing, or 2) the plan notifies participants within a reasonable time frame in advance of the reversal.

Telehealth and other remote care services

The FAQs provide relief from certain ACA group market reforms for the duration of any plan year beginning during the COVID-19 public health emergency, for a group health plan that solely provides telehealth and other remote care services. This relief will be limited to large employers that offer telehealth and other remote care services only to employees who are not eligible for coverage under any other group health plan offered by that employer. However, such arrangements must still comply with the following ACA market reforms: 1) prohibition on preexisting condition exclusions, 2) prohibition on discrimination based on health status, 3) prohibition on rescissions, and 4) reforms relating to mental health or substance use disorder benefits.

Grandfathered health plans

The guidance clarifies that a grandfathered health plan that adds benefits, or reduces or eliminates cost-sharing requirements, for the diagnosis and treatment of COVID-19 or for telehealth and other remote care services during the public health emergency will not lose its status solely because it later reverses those changes.


The FAQs provide that plans can disregard the items and services required to be covered under the FFCRA’s COVID-19 testing mandate when performing the “substantially all” or “predominant” tests for financial requirements and quantitative treatment limitations under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). In addition, HHS encourages states to adopt a similar approach with respect to health insurance issuers.

Wellness programs

The FAQs clarify that a health-contingent wellness program may waive the standard for obtaining a reward (including a reasonable alternative standard) if participants have difficulty meeting the standard due to COVID-19.

ICHRA notice requirements

ICHRA rules require that a notice be provided to participants (generally at least 90 days before the start of the plan year) that includes important information about the ICHRA requirements, terms and certain consequences of accepting ICHRA coverage. The DOL recently issued relief that extends the deadline to furnish an ICHRA notice to as soon as administratively practicable, between March 1, 2020, and 60 days after the announced end of the COVID-19 National Emergency. The FAQs discuss the consequences of delaying the ICHRA notice and encourage employers to give as much advance notice as possible before the first day of coverage so employees have enough time understand the notice, make informed decisions on whether to enroll in the ICHRA, and exercise their special enrollment right to individual health insurance coverage.

Going forward

Employers should review the FAQs to ensure they are complying with the COVID-19 testing mandate in the FFCRA, as amended by the CARES Act.

Employers that are offering telehealth services to employees who are not eligible to enroll in their medical plan(s) should be aware of the temporary relief from certain ACA group market reforms.

In addition, when conducting mental health parity testing, employers may disregard the benefits they are required to provide to comply with the COVID-19 testing mandate in the FFCRA, as amended by the CARES Act.


1 This term is defined in Section 1251(e) of the Affordable Care Act (ACA) and is used by the IRS, DOL, Centers for Medicare & Medicaid Services, and HHS in regulations and other agency guidance to refer to certain group health plans and health insurance coverage existing as of March 23, 2010 (the ACA’s date of enactment).

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Senior Regulatory Advisor, Health and Benefits

Senior Regulatory Advisor, Health and Benefits

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