13 April 2020

FAQs Clarify FFCRA and CARES Act Health Plan Requirements

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

On April 11, 2020, the U.S. Departments of Labor, Health and Human Services, and Treasury issued tri-agency answers to a series of frequently asked questions (FAQs) to help employers and insurers implement the new COVID-19 requirements for group health plans under recently passed legislation.


The Families First Coronavirus Response Act (FFCRA), which was enacted on March 18, 2020, requires group health plans to provide first dollar coverage for certain items and services related to the diagnosis of COVID-19.  The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), enacted 11 days later on March 27, 2020, amended the FFCRA and expanded the range of diagnostic items and services that must be covered, and made other related changes.  (See our previous client update here.)

The FAQs

Affected Plans

The FAQs make it clear that all employer group health plans must comply with the FFCRA and CARES Act changes—including both fully insured and self-funded plans, regardless of whether the group health plan is subject to ERISA (plans sponsored by governmental or church employers are not subject to ERISA).  However, the new requirements don’t apply to retiree-only plans, nor do they apply to excepted benefits, such as limited-scope dental or vision plans, most medical flexible spending accounts, on-site medical clinics, and most employee assistance plans (EAPs).  If an on-site medical clinic or EAP voluntarily offers COVID-19-related items and services, it will not otherwise cause the clinic or EAP to lose its “excepted benefit” status.  (Please note that in the case of an EAP, this coverage can only be provided while a public health or national emergency declaration is in effect.)

Covered Items and Services

As explained in our earlier Client Update, participants must be provided certain in vitro diagnostic tests for COVID-19 with no participant cost-sharing and with no prior authorization requirements.  The FAQs specify that the list of tests also includes serological tests that are used to detect antibodies against the virus that causes COVID-19.  In addition, the recent legislation also requires coverage for items and services provided during a visit (e.g., office, virtual, urgent care or emergency room) that relate to the administration of a COVID-19 diagnostic test or that relate to an evaluation to determine the need for a diagnostic test.  The FAQs provide that a “visit” includes non-traditional care settings such as a drive-through screening and testing site.  Also, since the Centers for Disease Control and Prevention strongly encourages clinicians to test for other causes of respiratory illness, the FAQs recognize that these other types of items and services may include influenza tests and blood tests.

Time Period When Coverage Required

The FAQs specify that the above-described coverage for diagnostic testing and related items and services in connection with a health care visit must be provided by a group health plan as of March 18, 2020.  This coverage must continue during the declared COVID-19 public health emergency which is set to end on June 16, 2020 (but could be extended or terminated earlier).

Out-of-Network Coverage

The FAQs affirmatively state that the required COVID-19 coverage described above applies regardless of whether the provider participates in the plan’s network.  For an out-of-network provider, if the provider doesn’t have a negotiated rate with the plan, the plan must reimburse the provider based on the price listed on a public internet site (unless the plan and provider negotiate a lower amount).

Summary of Benefits and Coverage (SBC)

If a mid-year plan change affects the information contained on the SBC, a new SBC must generally be provided at least 60 days before the change takes effect.  Employers and insurers have been concerned that immediately implementing the coverage for COVID-19 related items and services discussed above might run afoul of this requirement.  The FAQs make it clear that no federal enforcement action will be taken against an employer or insurer for modifying a plan without first giving participants a new SBC at least 60 days in advance. This non-enforcement policy applies to the required coverage described above and voluntary first-dollar coverage of COVID-19 treatment.  However, plans and insurers are asked to provide notice (either via a newly-issued SBC or a summary of material modification) as soon as reasonably practicable.


The FAQs strongly encourage plans to cover telehealth and other remote care services to help combat the COVID-19 public health emergency.  The CARES Act added a provision to permit (but not require) HSA-eligible HDHPs to provide telehealth services before the deductible has been satisfied.  This rule extends not only to COVID-19 related items and services, but also telehealth services for any other health condition.  Such coverage will not cause a participant to become ineligible to make contributions to an HSA.  The FAQs add that this also applies to telehealth provided outside the HDHP.  In other words, an HSA-eligible individual may receive telehealth services outside of the HDHP before satisfying the HDHP deductible and still contribute to an HSA.  This optional enhanced telehealth coverage may be offered beginning March 27, 2020 and may continue through the end of the plan’s last plan year beginning on or before December 31, 2021.


 If you have any questions, please contact a Miller Jonson benefits attorney.