On March 18, 2020, Congress passed, and the President signed, the Families First Coronavirus Response Act (FFCRA), which is the second major piece of federal legislation enacted in response to the US outbreak of COVID-19, the disease that results from the SARS-CoV-2 virus (Pub. L. No. 116-127). Among other provisions, the FFCRA requires group health plans and health insurers to provide coverage, without cost-sharing, for detecting SARS-CoV-2 or diagnosing COVID-19.

The FFCRA follows enactment earlier this month of the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (Pub. L. No. 116-123) (Mar. 6, 2020), which provided supplemental emergency funding to several federal agencies to prevent, prepare for, and respond to the COVID-19 outbreak (see Legal Update, President Signs Legislation to Fund Coronavirus Response; Health Insurers to Waive Co-Pays).

For a continuously updated collection of resources addressing COVID-19, see Practical Law's Global Coronavirus Toolkit.

The FFCRA requires group health plans (including grandfathered health plans under the Affordable Care Act (ACA)) and health insurers to cover:

Plans and insurers may not impose cost-sharing, preauthorization, or other medical management requirements regarding the COVID-19 testing (see generally Practice Note, Preventive Health Services Under the ACA, Other Than Contraceptives: Use of Reasonable Medical Management).

The COVID-19 testing requirement is limited to services provided during the emergency period beginning on or after the FFCRA's enactment date (that is, March 18, 2020).

Regarding enforcement, the Departments of HHS, DOL, and Treasury will apply the COVID-19 testing mandate to plans and insurers "as if" the provision were included in the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code (Code), and the Public Health Service Act (PHSA) (see Practice Note, Excise Tax Reporting for Group Health Plans (IRS Form 8928)). (However, the FFCRA does not technically amend those statutes.)

The FFCRA also authorizes additional funding to HHS, Treasury, and other agencies, including an additional:

The FFCRA requires certain employers to provide paid sick leave and expands the Family and Medical Leave Act (FMLA) for absences related to COVID-19 (see Article, Expert Q&A: COVID-19 and Employment). In addition, the FFCRA provides for tax credits relating to sick leave and family leave wages under the FFCRA. These credits are increased for "qualified health plan expenses" that are allocable to those wages. The FFCRA defines "qualified health plan expenses" as amounts that:

These qualified health plan expenses are allocated to sick leave family leave wages under the FFCRA on a pro rata basis (and subject to guidance from Treasury).

Wages used in determining the sick leave or family leave wages credit cannot also be used in calculating the credit under Code Section 45S (26 U.S.C. § 45S) (see Practice Note, Employer Credit for Paid Family and Medical Leave Under the TCJA (Code Section 45S)).

In another COVID-19 development, HHS has issued a limited waiver of penalties and sanctions for covered health providers that fail to comply with certain provisions of HIPAA's Privacy Rule as a result of the COVID-19 outbreak (see Practice Note, HIPAA Privacy Rule and HIPAA Privacy, Security, and Breach Notification Toolkit). Among other provisions, the waiver applies to the failure to provide notices of privacy practices (see Standard Document, HIPAA Notice of Privacy Practices for Group Health Plans).

The FFCRA authorizes HHS, DOL, and Treasury to implement the COVID-19 coverage testing mandate through subregulatory and related guidance (which, given the exigency of this outbreak, can be issued more quickly than standard notice-and-comment regulatory rulemaking). As a result, it's likely that we'll begin receiving this guidance in the relatively near future.