Human Resources

The Washington Report

February 09, 2022

Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline.

Note to Subscribers

The Washington Report will not be published on February 16, 2022. Look for your next Aon Washington Report on Wednesday, February 23, 2022.



House Approves Bill Ending Forced Arbitration in Sexual Assault and Harassment Cases
On February 7, 2022, the House passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445) with a 335–97 vote. The bill invalidates arbitration agreements that preclude a party from filing a lawsuit in court involving sexual assault or sexual harassment, at the election of the party alleging such conduct. The Senate is expected to consider the bill later this week.

The full text of H.R. 4445 is available here.



Departments Release FAQs About FFCRA and CARES Act, Part 52; Address Coverage of OTC Tests
On February 4, 2022, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) released new Frequently Asked Questions (FAQs) regarding implementation of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The guidance addresses the following five questions:

Q1: Do 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 established in FAQs Part 51, Q2?
Q2: Will the Departments take enforcement action against a plan or issuer that is temporarily unable to provide adequate access to over-the-counter (OTC) COVID-19 tests through its direct coverage program due to a supply shortage?
Q3: Is a plan or issuer permitted to address suspected fraud and abuse related to the reimbursement of OTC COVID-19 tests purchased by a participant, beneficiary, or enrollee from a private individual or via online auctions, resale marketplaces, or resellers?
Q4: Do the coverage requirements specified in FAQs Part 51 apply to COVID-19 tests that use a self-collected sample but require processing by a laboratory or other health care provider to return results (such as home-collection polymerase chain reaction tests that can be purchased directly by consumers)?
Q5: How does a plan’s or issuer’s coverage of OTC COVID-19 tests impact health flexible spending arrangements and similar account-based plans?

For additional information, please refer to the Aon bulletin, Departments Clarify Guidance on Coverage of OTC COVID-19 Tests, found in the Publications section of the newsletter.

The FAQs are available here.

CMS Announces Medicare Will Cover Free OTC COVID-19 Tests; Releases FAQs
On February 3, 2022, the Centers for Medicare & Medicaid Services (CMS) announced that individuals in either Original Medicare or Medicare Advantage will be able to obtain OTC COVID-19 tests at no cost starting in early spring 2022. Under the new initiative, Medicare beneficiaries will be able to access up to eight OTC COVID-19 tests per month for free. Tests will be available through eligible pharmacies and other participating entities. This policy will apply to COVID-19 OTC tests approved or authorized by the U.S. Food and Drug Administration. As part of the announcement, CMS also released FAQs providing additional details about the initiative.

The news release is available here.

The FAQs are available here.

Aon Publications


Departments Clarify Guidance on Coverage of OTC COVID-19 Tests
On February 4, 2022, the Departments of Labor, Treasury, and Health and Human Services (the Departments) issued further guidance (Frequently Asked Questions Part 52) on the requirement that health plans offer first-dollar coverage of over-the-counter (OTC) COVID-19 tests without a prescription, individualized clinical assessment from a provider, prior authorization, or other medical management requirements.

This Aon bulletin discusses:

  • Background on coverage of OTC COVID 19 tests, including the two safe harbors for implementing this coverage;
  • Employer flexibility in designing direct coverage of the OTC COVID-19 tests for plan participants under the safe harbor;
  • Compliance with the safe harbor when faced with a shortage of OTC COVID-19 tests;
  • Issues of fraud and abuse in reimbursing OTC COVID-19 tests;
  • Miscellaneous issues, including prohibitions against double-dipping; and
  • What employers should do now.

The Aon bulletin is available here.

Now Available: Legal Consulting & Compliance Quarterly Update
The Retirement Legal Consulting & Compliance practice is pleased to present its Quarterly Update of recent legal developments for the first quarter of 2022. In this issue you will find the following articles:

  • Pooled Employer Plans Launched and Ready for Acceleration
  • Plaintiffs and Regulators Take Aim at Cross-Selling Participant Data
  • Litigation May Result if Plan Governance Rules Not Followed
  • Do Not Ignore Compliance Regulations in 2022
  • Proposed Rule on ESG Considerations and Investment Duties
  • IRS Provides FAQs Regarding Rehiring or Retaining Retirees
  • Recently Released EBSA Fact Sheet Provides Summary of Enforcement Efforts
  • IRS Clarifies Ability to Rely on IRS Answers to Frequently Asked Questions
  • Quarterly Roundup of Other New Developments
  • Recent Publications

The first quarter 2022 issue of the Retirement Legal Consulting & Compliance Quarterly Update is available here.



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