"The Departments are issuing these FAQs to clarify how the COVID-19 coverage and payment requirements under the FFCRA and CARES Act will change when the PHE ends. Specifically ... plans and issuers are not required to provide coverage for items and services related to diagnostic testing for COVID-19 that are furnished after the end of the PHE, and if they provide such coverage, they may impose cost-sharing requirements, prior authorization, or other medical management requirements for such items and services."
8 Q&As covering:
COVID-19 diagnostic testing;
Rapid coverage of preventive services and vaccines for coronavirus;
Extension of certain timeframes for employee benefit plans subject to ERISA and the Code, participants, and beneficiaries affected by the COVID-19 outbreak;
Special enrollment in group health plan and group or individual health insurance coverage after loss of eligibility for Medicaid or Children's Health Insurance Program (CHIP) coverage or after becoming eligible for premium assistance under Medicaid or CHIP;
Benefits for COVID-19 testing and treatment and health savings accounts (HSAs)/high deductible health plans (HDHPs).
Also available: Medicaid-CHIP SEP Options Flyer, for individuals who may lose their Medicaid or Children's Health Insurance Program (CHIP) coverage after March 31, 2023. MORE >>
"After the end of the COVID-19 public health emergency, group health plans will no longer be required to cover COVID-19 diagnostic testing (including over-the-counter tests) at no cost to individuals.... While many plans must continue to cover COVID-19 vaccines at no cost to employees from an in-network provider, the requirement to cover COVID-19 vaccines out-of-network will generally lapse after the end of the COVID-19 public health emergency.... The end of the COVID-19 national emergency also means that the extensions of certain time frames for employee benefit plans are expected to end on July 10, 2023 (60 days after the end of the national emergency).... Many employees and dependents who are currently enrolled in Medicaid or CHIP coverage may lose eligibility for that coverage after March 31, 2023."
"An employee with a sick child who was denied remote work at the start of the COVID-19 pandemic may have brought viable [FMLA] claims against her employer.... The 6th Circuit noted that the plaintiff never actually took FMLA leave, but only made a request for leave. Thus, the court found, the question was whether she had a right to inquire about and request leave even if it turned out that she was not entitled to such leave." [Milman v. Fieger & Fieger PC, No. 21-2685 (6th Cir. Jan. 25, 2023)] MORE >>
"On January 10, 2022, the Departments issued [FAQs Part 51, which] clarified that the requirement to cover COVID-19 diagnostic tests under section 6001 of the FFCRA applies with respect to over-the-counter (OTC) COVID-19 tests available without a prescription or individualized clinical assessment from a health care provider. Plans and issuers must provide coverage for such tests without cost-sharing requirements, prior authorization, or other medical management requirements in accordance with section 6001 of the FFCRA with respect to such tests purchased on or after January 15, 2022, during the public health emergency.
"FAQs Part 51 also established two safe harbors intended to facilitate consumer access without cost sharing to OTC COVID-19 tests available without an order or individualized clinical assessment by a health care provider that meet the statutory criteria under section 6001(a)(1) of the FFCRA....
"The Departments have received a number of questions from stakeholders regarding FAQs Part 51. These FAQs Part 52 modify the safe harbor in FAQs Part 51, Q2 in certain respects and further clarify the coverage requirements during the public health emergency related to coverage of OTC COVID-19 tests available without an order or individualized clinical assessment by a health care provider in response to those questions....
Q1: Do plans and issuers have flexibility in how they establish a direct-to-consumer shipping program and direct coverage through an in-person network in order to qualify for the safe harbor established in FAQs Part 51, Q2?....
Q2: Will the Departments take enforcement action against a plan or issuer that is temporarily unable to provide adequate access to OTC COVID-19 tests through its direct coverage program due to a supply shortage?....
Q3: Is a plan or issuer permitted to address suspected fraud and abuse related to the reimbursement of OTC COVID-19 tests purchased by a participant, beneficiary, or enrollee from a private individual or via online auctions, resale marketplaces, or resellers?....
Q4: Do the coverage requirements specified in FAQs Part 51 apply to COVID-19 tests that use a self-collected sample but require processing by a laboratory or other health care provider to return results (such as home-collection PCR tests that can be purchased directly by consumers)?....
Q5: How does a plan's or issuer's coverage of OTC COVID-19 tests impact health flexible spending arrangements and similar account-based plans?"
23 pages. "These temporary regulations authorize the assessment of any erroneous refund of the tax credits paid under sections 3131, 3132 (including any increases in those credits under section 3133), and 3134 of the Code.... These temporary regulations provide that erroneous refunds of these credits are treated as underpayments of the taxes imposed under section 3111(b) ... These temporary regulations authorize the IRS to assess any credits erroneously credited, paid, or refunded in excess of the amount allowed as if those amounts were taxes imposed under section 3111(b) ... subject to assessment and administrative collection procedures."
"The paid leave rights of parents afforded under the federally enacted [FFCRA] expired on December 31, 2020. Since that time, a handful of states have passed paid leave rights, but not all guarantee coverage for school closures. Given the circumstances, time off for working parents remains a contentious issue."
"The actual budgetary cost of the provisions that provided this credit remains uncertain ... Data on self-employed individual claims of this credit are not yet available, and ... the 'IRS continues to process a paper return backlog, which makes the data … incomplete, particularly for small employers.' In addition, taxpayers may still file additional claims and update the amounts on prior claims." MORE >>
12 pages. "This notice extends the penalty relief provided in Notice 2020-22 to apply to deposits of Employment Taxes reduced in anticipation of the following credits: [1] Paid sick and family leave credits under the [FFCRA, as amended by CAA], with respect to qualified leave wages paid with respect to the period beginning January 1, 2021, and ending March 31, 2021; [2] Paid sick and family leave credits under sections 3131, 3132, and 3133 of the Code, added by [ARPA], with respect to qualified leave wages paid with respect to the period beginning April 1, 2021,and ending September 30, 2021; ... [3] The credit for Continuation Coverage Premium Assistance under section 6432 of the Code, as added by [ARPA], for COBRA continuation coverage premiums not paid by assistance eligible individuals for such coverage ... during the period beginning April 1, 2021, and ending September 30, 2021." MORE >>
Podcast with transcript. "[E]mployers need to make sure they're not giving this FFCRA paid sick leave to employees based on the fact that they are highly compensated, or that they're full time, or based on seniority.... [T]hey're not going to qualify for those tax credits ... [and] will have to cover the costs themselves if they choose to do this." MORE >>
"This [report] provides an overview of the tax credits for paid leave initially provided in the [FFCRA] and later extended in the COVID-related Tax Relief Act of 2020, enacted as Division N, Title II, Subtitle B of the Consolidated Appropriations Act, 2021 (P.L. 116-260) and the American Rescue Plan Act[.]" [IF11739, Apr. 1, 2021] MORE >>
"The ARPA [1] increases the qualifying reasons for EPSL to nine ... [2] resets an employee's available EPSL days as of April 1, 2021.... [3] extends the EFMLA qualifying reasons to all nine of the EPSL reasons[.]" MORE >>
"The amended [Public Health Emergency Leave (PHEL)] ordinance ... expands existing paid sick leave requirements by mandating Philadelphia businesses with at least 50 employees provide additional paid time off to employees who have worked for the business at least 90 days." MORE >>
"Employers covered by relevant federal, state, and/or local leave laws, including any recently enacted emergency leave laws, should evaluate how, if at all, those laws interact with paid leave benefits provided under the Act."
"[T]he employer might consider choosing to provide 10 days of EPSL only, and not EFML, which ensures its risk is effectively zero.... As to whether EFML should count against FMLA classic leave, the employer must determine its risk tolerance."
"An employer's decision to extend EPSL and EFMLA paid leave is entirely voluntary.... However, employers wishing to take advantage of the refundable tax credits will need to comply with the EPSL and EFMLA requirements, as modified by the ARPA."
"While IRS Notice 2020-54 provided guidance on the W-2 reporting requirement in July 2020, this guidance was not incorporated into Form W-2 instructions for 2020. Since most employers provide W-2s to their employees by January 31, there may be many who misreported leave payments and must now send corrected W-2s to their employees."
"[The ARPA extends] the [FFCRA] tax credits through September 30, 2021. The ARPA also broadens the qualifying reasons for the FFCRA tax credit and imposes a new anti-discrimination requirement."
"The new law explicitly states that employees get a new bucket of EPSL as of April [1] But do employees also receive a new bucket of EFML as of April 1? ... Can employers provide EPSL but not EFML? ... Can employers provide just a portion of EPSL or EFML, but not the entire allotment? ... Do employers run EFML against an employee's classic FMLA entitlement?"
"Employees who are working from home may have large accruals in their leave banks, particularly if the employer has adopted a PTO plan. An employer who voluntarily adopts FFCRA leave under [ARPA] would be required to grant 10 additional days of COVID-related sick leave beginning April 1 that may be used until September 30, 2021, on top of other available paid leave."
"The credit for paid sick leave under the [FFCRA] is extended for absences and paid leaves provided by employers in 2021.... The paid sick leave credit applies even though the mandate to provide paid sick leave under the FFCRA has expired."
"[ARPA] does not mandate employers provide COVID-19 related leave and continues to limit the tax credit to employers covered by the FFCRA (which for private employers, means employers with less than 500 employees)." MORE >>
"ARPA will extend [the] tax credits from April 1, 2021, through Sept. 30, 2021, and expand the reasons for which eligible employees can take tax credit-funded EPSLA and EFMLA leaves."
"The credits for paid sick and family leave created by the [FFCRA] are extended to September 30, 2021.... Concerning the paid sick leave portion of the law, the American Rescue Plan resets the two-week leave limit as of March 31, 2021." MORE >>
"In the end, the House modified and extended the payroll tax credits for employer-provided paid sick and paid FMLA leave.... Congress is poised to simply extend FFCRA leave provisions on a voluntary basis, just as we have now."
11 pages; 14 Q&As. "This document addresses the requirement under section 6001 of the [FFCRA], as amended by section 3201 of the [CARES Act], for group health plans and health insurance issuers offering group or individual health insurance coverage, including grandfathered health plans, to provide benefits for certain items and services related to diagnostic testing for COVID-19, without imposing any cost-sharing requirements, prior authorization, or other medical management requirements. In addition, this document addresses the requirement under section 3203 of the CARES Act for non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage to cover, without cost sharing, qualifying coronavirus preventive services, including recommended COVID-19 vaccines. This document also addresses other health coverage issues related to COVID-19 and includes information about how providers may seek federal reimbursement when delivering COVID-19 related services to the uninsured." [Updated Oct. 4, 2021. Link above is to updated version; view original version (archived).] MORE >>
