By: David Keating

On December 2, President Biden announced a nine-point action plan to combat COVID-19 as the United States heads into the winter months and with the emergence of a new variant, Omicron.  One of the actions announced calls for the Departments of Health and Human Services, Labor and the Treasury to issue guidance by January 15, 2022 to clarify that individuals who purchase over-the-counter COVID-19 at-home diagnostic tests may seek reimbursement from their group health plan or health insurance issuer at no cost to the health plan participant during the public health emergency.

The Department of Health and Human Services Secretary has renewed the public health emergency every three months since January 2020.  The current public health emergency expires on January 15, 2022.  Based on the deadline for the guidance and the wording of the action plan, it is certainly expected that the public health emergency will be extended into the foreseeable future.

Under the current guidance, over-the-counter at-home COVID tests are covered at no cost to the health plan participant only when ordered by an attending health care provider following a determination of medical necessity.  The forthcoming guidance will likely eliminate the involvement of a health care provider.

The action plan states that workplace screening will remain consistent with current guidance.  Under the current guidance, coverage for COVID testing without health plan participant cost-sharing is not required if the purpose is general workplace health and safety (such as return-to-work programs, public health surveillance, or any other employment-related reason not primarily intended for individualized diagnosis or treatment of COVID-19.  The action plan may indicate that coverage for at-home testing without health plan participant cost-sharing will still not be required if the test’s purpose is to allow employees to return to the workplace in accordance with an employer’s policy and/or OSHA’s Emergency Temporary Standard for employers with 100+ employees (which is currently stayed pending litigation).  If that is the case, it would seem that it would be extremely difficult to monitor from a practical standpoint.

The action plan leaves open many questions for employer health plans that the forthcoming guidance should answer.  For instance, may group health plans impose limits (such as number, frequency, or dollar caps) on coverage and reimbursement of at-home tests without participant cost-sharing?  Will the at-home test be fully covered at the point of sale or will the health plan participant need to submit claims for reimbursement?  Employers should closely watch for the guidance to determine what changes will be required to their health plans and the costs associated to those changes due to the expanded scope of required coverage.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the President’s action plan or any other labor or employment issue involving your business, please contact us at any time.