COVID Update and Other Preventive Services Clarified

COVID Update and Other Preventive Services Clarified

State of Vaccine Litigation

On January 7, 2022, the Supreme Court heard oral arguments relating to OSHA’s vaccine or test requirement applicable to employers employing 100 or more employees. As a reminder, OSHA’s ETS took effect January 10, 2022 with the testing requirement beginning February 9. 2022.

The Supreme Court also heard oral arguments on the CMS vaccine mandate applicable to health care facilities that receive federal Medicare and Medicaid funding.

On January 13, the Supreme Court issued its orders on National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, et al. and Joseph R. Biden, Jr., President of the United States, et al. v. Missouri, et al.

In the National Federal of Independent Business case challenging OSHA’s ETS requirement, the Supreme Court in a 6-3 split grants the application to stay, meaning the matter will continue to wind its way through the Sixth Circuit.  In the meantime, employers will not be obligated to comply with the OSHA ETS.

In the Biden case, the Court in a 5-4 split, upholds the right of the Centers for Medicare and Medicaid Services to require vaccines of individuals working at health care facilities that receive Medicare or Medicaid funding.  These entities will now need to proceed with their vaccine protocol with disability and religious exemptions available in appropriate circumstances.

At-Home COVID-19 Tests

The tri-governing agencies (Departments of Labor, Health and Human Services and Treasury) have issued FAQ Part 51 guidance providing details on how health plans, both insured and self-funded, must cover at-home coronavirus testing. On December 2, 2021, the Administration announced that individuals who purchase OTC COVID-19 tests during the public health emergency will be able to seek reimbursement from their plan or issuer. Beginning January 15, health plans must cover up to 8 at-home OTC COVID-19 tests per insured or beneficiary per month. Notably, a health plan is not obligated to cover at home tests for work authorization.

The guidance provides that a health plan can recommend that the individual purchase an OTC COVID-19 test through a preferred pharmacy. However, if the individual purchases an OTC COVID-19 test from a non-preferred pharmacy or other retailer, the health plan must cover the actual price or $12 per test (whichever is lower).

Plans must continue to cover an unlimited number of medically-indicated COVID-tests as recommended by a health care provider in accordance with previously issued guidance. As a reminder, for the duration of the public emergency currently schedule through January 16, 2022 and likely to be renewed for an additional 90-day period, health plans must cover the full cost of in- and out-of-network medically-indicated COVID-tests.

As reminder, HSA eligibility is not jeopardized by providing first-dollar coverage for coronavirus testing. Therefore, a high-deductible health plan will, in accordance with this guidance, provide the at-home test kits prior to an individual satisfying the minimum statutory HSA high-deductible.

Preventive Services

Colorectal Cancer Screening

As recommended by the United States Preventive Services Task Force (USPSTF), health plans are required to cover colorectal cancer screenings starting at age 50 years without cost sharing.

This FAQ guidance provides that for plan or policy years beginning on or after May 31, 2022, a health plan must cover, without cost sharing, a follow-up colonoscopy after a positive non-invasive stool-based screening test or direct visualization screening test.

FDA-approved Contraceptive

The HRSA Women’s Preventive Services Guidelines, provides that adolescent and adult women have access to the full range of female-controlled FDA-approved contraceptive methods, effective family planning practices and sterilization procedures to prevent unintended pregnancy. In 2015, the tri-governing agencies issued an FAQ clarifying that plans and issuers must cover, without cost sharing, at least one form of contraception in each method that is identified by the FDA in its Birth Control Guide.

This FAQ guidance makes clear that all FDA-approved cleared or granted contraceptive products that are determined by an individual’s medical provider to be medically appropriate for such individual must be covered without-cost sharing, whether or not specifically identified in the current FDA Birth Control Guide.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations. This information is provided as general guidance and may be affected by changes in law or regulation. This information is not intended to replace or substitute for accounting or other professional advice. You must consult your own attorney or tax advisor for assistance in specific situations. This information is provided as-is, with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.

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