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February HR News Worth Review

Agencies Issue FAQs on Coverage of COVID-19 Diagnostic Testing

On Feb. 4, 2022, the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (Departments) jointly issued FAQs (FAQs Part 52) regarding coverage of over-the-counter (OTC) COVID-19 tests.

These FAQs modify and clarify the guidance in FAQs Part 51, which specified that plans and issuers must cover OTC COVID-19 tests available without an order or individualized clinical assessment by a health care provider.

The new FAQs include the following guidance:

  • 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.
  • The Departments will not 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.
  • Plans and issuers are permitted to take reasonable steps to prevent, detect and address fraud and abuse.
  • The OTC test coverage requirements do not apply to tests that use a self-collected sample but require processing by a laboratory or other health care provider to return results.

The FAQs also address how a plan’s or issuer’s coverage of OTC COVID-19 tests impacts health flexible spending arrangements (FSAs) and similar account-based plans.

Employer Takeaway
Most all insurance carriers are handling the coverage and availability requirements for their clients. If your plan is self-funded, please confirm with your TPA that it is complying with the most recently released guidance.

California Passes Supplemental COVID-19 Paid Sick Leave

California has passed a new supplemental paid sick leave law requiring employers with more than 25 employees to provide up to 40 hours of paid leave for specific COVID-19-related reasons, and 40 additional hours if they or a family member test positive for COVID-19. The law takes effect Feb. 19, 2022, but it is retroactive to Jan. 1, 2022. California previously had a similar law in effect that expired on Sept. 30, 2021.

Compensation is limited to $511 per day and $5,110 total per worker.

Covered Employers and Employees
The new law applies to employers with more than 25 employees. Employees are covered if they are unable to work or telework for an employer because of:

  1. A quarantine or isolation order, guidance or advice pertaining to themselves or a family member;
  2. A COVID-19 vaccination appointment for themselves or a family member (including vaccine boosters);
  3. Their own or a family member’s vaccination recovery (limited to 3 days);
  4. Their own symptoms of COVID-19 while seeking a medical diagnosis; or
  5. Caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Workers are also entitled to the leave if they or a family member they care for test positive for COVID-19. Full-time employees receive 40 hours of supplemental paid sick leave for reasons 1-5 above, plus 40 more hours for positive COVID-19 testing. Part-time and variable-hours employees receive an amount calculated according to their work schedule, as do firefighters. Supplemental paid sick leave must be provided in addition to any accrued paid sick time required under California law.

Employer Takeaway
Multi-state employers should continue to monitor paid leave requirements related to COVID in the states in which they operate until the pandemic is over.

PCORI Fee Amount Adjusted for 2022

The Internal Revenue Service (IRS) has issued Notice 2022-04 to increase the Patient-Centered Outcomes Research Institute (PCORI) fee amount for plan years ending on or after Oct. 1, 2021, and before Oct. 1, 2022. The updated PCORI fee amount is $2.79 multiplied by the average number of lives covered under the plan.

PCORI fees are reported and paid annually on IRS Form 720 (Quarterly Federal Excise Tax Return). These fees are due each year by July 31 of the year following the last day of the plan year. For plans ending in 2021, the next PCORI fee payment will be due Aug. 1, 2022, since July 31, 2022, is a Sunday. Covered employers should have reported and paid PCORI fees for 2020 by Aug. 2, 2021 (since July 31, 2021, was a Saturday).

2022 Health Plan Compliance Deadlines

As mentioned above as it relates to PCORI fees, and in last month’s compliance update as it relates to ACA and Creditable Coverage reporting, employers need to be aware of various annual compliance deadlines. For example, employers in California (with a special focus on San Francisco), Massachusetts, New Jersey, Rhode Island and Washington, DC may have their own, separate insurance filings due to those states’/cities’ individual mandates or ordinances.

For a list of other applicable deadlines, please review our 2022 Health Plan Compliance Checklist.

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