By: HUB’s EB Compliance Team

In this most recent set of FAQs issued on February 26, the Departments of Treasury, Labor, and Health and Human Services (the “Departments”) expanded and clarified various rules regarding coverage of COVID-19 testing and vaccines.

COVID-19 Testing: What does “free” mean?

Under the CARES Act, during the period of the HHS-declared public health emergency, plans are generally required to cover COVID tests at no cost to the enrollees. For out-of-network providers, the plan can pay the cash price posted on the provider’s website. Providers face penalties for not posting the cash price on their website.

The new FAQs provide the following clarifications of these requirements:

  • Plans cannot require symptoms, a known or suspected exposure, or other medical criteria to pay for the test. Plans also cannot impose cost sharing, prior authorization, or other medical management techniques. In other words, anyone covered by the plan can get the test and the plan is required to pay for it (except see the next bullet).
  • However, plans are not required to cover testing for workplace safety, public health surveillance, or employment purposes. For example, an insurance carrier would not have to pay costs associated with regular testing for a nursing home attendant’s on-going job function. Similarly, “return-to-work” testing is not required to be covered by the plan. The CARES Act simply requires that plans cover testing so that an individual can determine if they need treatment (or need to isolate/quarantine). However, plans may, if they choose to, cover workplace or other testing.
  • Plans are required to cover tests provided through state- or locality-administered testing sites. Therefore, drive through tests offered by a state or other governmental entity are required to be covered.
  • Point-of-care tests (i.e., the rapid tests) are also required to be covered.
  • The FAQs reiterate that plans must cover items and services that relate to the furnishing of the test or result in the test being requested (this is not new). In addition, these FAQs further require that plans maintain claims processing in a way that protects covered persons from inappropriate cost-sharing and they also direct that plan sponsors document how these financial protections are secured. Demonstrating that these financial protections are achieved will thereby impose specific new obligations for carriers and ASO/TPA providers.

How a plan should reimburse out-of-network providers that fail to disclose a posted website “cash price” (as they are legally required to do) represents the big elephant in the room.  The FAQs acknowledge that “some providers have not done so and are using the public health emergency as an opportunity to impose extraordinarily high charge.” The FAQs recommend educating covered persons about the need to find a provider who has posted its rate on its public-facing website. Plans can report non-compliant providers by emailing (the FAQs don’t say this, but it probably would help to include a link to the non-compliant website).


The new FAQs confirm that non-grandfathered plans are required to cover vaccines recommended by the US Preventive Services Task Force or the Advisory Committee on Immunization Practices and the cost of administering those vaccines, as we discussed here. (Note that HUB maintains a “Vaccine Tracker” in our Coronavirus and Vaccine Resource Center that is updated as new recommendations are finalized.)

Coverage is required within 15 business days (not including weekends or holidays) after the recommendations are finalized. Based on this 15-day count, plan coverage for the Pfizer/BioNTech vaccine was required no later than January 5, 2021 and correspondingly January 12, 2021 for the Moderna vaccine. Note that plans can always choose to cover them sooner (and some states may require insured plans to cover them sooner, as described in HUB’s Vaccine Tracker).

The FAQs confirm that plans may not restrict reimbursement to plan members in certain priority categories (e.g., health care workers, teachers, those over 65, etc.). The only restriction a plan can impose is the minimum age for which the vaccine is authorized. For example, the Pfizer/BioNtech vaccine is currently only authorized for ages 16 and up.  Therefore, a plan is not required to reimburse for a Pfizer/BioNtech vaccine administered to someone under 16. That said, plans are allowed to communicate about the priority categories to plan members, but they cannot say that coverage will only be provided to those who fall in the priority categories.    

Helpfully, the FAQs also confirm that a health care provider’s decision not to vaccinate someone because they are not in a priority category is not a claim denial under the health plan.  This is a truism, but it is helpful confirmation.

The FAQs also confirm that employers will not have a compliance issue if the plan covers a vaccine that is not reflected in their Summary of Benefits and Coverage (“SBC”).  However, employers should provide notice that the vaccines are covered as soon as they reasonably can.

More Assistance in EAPs and On-Site Clinics

As we shared previously, the Departments said coronavirus testing and diagnosis can be covered under certain employee assistance programs (“EAPs”) and those EAPs would not, as a result, become group health plans that are subject to all Affordable Care Act (“ACA”) requirements. In other words, the EAPs would remain “excepted benefits” under the ACA. The FAQs expand this to say that these EAPs can cover the costs of vaccines and vaccine administration as well. Note that to qualify, EAPs cannot coordinate with the group health plan, they cannot require employee premiums/contributions, and there must be no cost sharing for the vaccine or its administration (among other requirements). 

Similarly, on-site clinics can offer vaccines and vaccine administration and still not be considered group health plans. The FAQs make a surprisingly broad statement that “Coverage of on-site medical clinics is an excepted benefit in all circumstances.” 

These important exceptions enable employers to provide vaccines to members of their workforce who are not enrolled in the group health plan without the possibly complicating factor of having established a new type of employee benefit program.

One Other Nugget

Footnote two of the FAQs indicates that the Secretary of Health and Human Services has already notified state governors that HHS expects the public health emergency to remain in place through the end of 2021. That footnote also states that HHS intends to give the governors 60 days advance notice before ending the emergency. This is something for employers to keep an eye on as it will signal when the above requirements and relief conclude.

For the latest information on COVID-19 and the vaccines, please keep visiting HUB’s Coronavirus and Vaccine Resource Center. If you have any questions, please contact your HUB Advisor. You can also view more compliance articles in our Compliance Directory.


The information herein is intended to be educational only and is based on information that is generally available. HUB International makes no representation or warranty as to its accuracy and is not obligated to update the information should it change in the future. The information is not intended to be legal or tax advice. Consult your attorney and/or professional advisor as to your organization’s specific circumstances and legal, tax or other requirements.