January 14, 2022
Following up on direct discussions with HHS, DOL, and Treasury (the Departments) regarding their January 10, 2022 FAQ guidance, the Business Group on Health filed detailed comments advocating for additional clarity, flexibility, and certainty for employer plan sponsors. Our comments and requests focused on the following areas:
- Allowing employer plans to immediately utilize the “direct coverage” safe harbor under Q#2 as they work in good faith to establish the requisite networks and other arrangements.
- Clarify that OTC tests provided directly by the employer will be counted in the assessment of direct coverage under Q#2 and towards the 8-test per month per covered individual maximum under Q#3. Giving credit for employer obtained and provided tests under Q#2, Q#3, and generally.
- Although not required under the rules, employers that provide OTC tests for employment (or other non-required) purposes should be able to count those tests towards the direct coverage and 8-test requirements. Give credit for tests that are provided by employers for employment-related testing (though not required, should get credit).
- In showing “adequate” direct coverage under Q#2, plans should be able to rely on either or both in-person or online resources, and not be required to have both.
- Plans should be permitted to have reasonable controls on the acquisition of tests within the 8-test per month requirement. E.g., 2 tests per week.