FAQS ABOUT AFFORDABLE CARE ACT 
IMPLEMENTATION PART 50, HEALTH 
INSURANCE PORTABILITY AND 
ACCOUNTABILITY ACT AND CORONAVIRUS 
AID, RELIEF, AND ECONOMIC SECURITY ACT 
IMPLEMENTATION  
October 4, 2021 
Set out below are Frequently Asked Questions (FAQs) regarding implementation of the 
Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Health Insurance 
Portability and Accountability Act of 1996 (HIPAA) and the Affordable Care Act. These FAQs 
have been prepared jointly by the Departments of Labor, Health and Human Services (HHS), and 
the Treasury (collectively, the Departments). Like previously issued FAQs (available at 
https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-
and-advisers/aca-implementation-faqs and https://www.cms.gov/cciio/resources/fact-sheets-and-
faqs#Affordable_Care_Act), these FAQs answer questions from stakeholders to help people 
understand the law and benefit from it, as intended.  
Rapid Coverage of Preventive Services for Coronavirus 
Section 3203 of the CARES Act and its implementing regulations1 require non-grandfathered 
group health plans and health insurance issuers offering non-grandfathered group or individual 
health insurance coverage to cover, without cost-sharing requirements, any qualifying 
coronavirus preventive service pursuant to section 2713(a) of the Public Health Service Act 
(PHS Act) and its implementing regulations (or any successor regulations). The term qualifying 
coronavirus preventive service means an item, service, or immunization that is intended to 
prevent or mitigate coronavirus disease 2019 (COVID-19) and that is, with respect to the 
individual involved 
  An evidence-based item or service that has in effect a rating of A or B in the 
current recommendations of the United States Preventive Services Task Force 
(USPSTF); or  
  An immunization that has in effect a recommendation from the Advisory Committee 
on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention 
(CDC) (regardless of whether the immunization is recommended for routine use).  
                                                            
1 Pub. L. No. 116-136 (2020); 26 CFR 54.9815-2713T(a)(1)(v), 29 CFR 2590.715-2713(a)(1)(v), and 45 CFR 
147.130(a)(1)(v).  Plans and issuers must cover qualifying coronavirus preventive services without cost sharing 
starting no later than 15 business days (not including weekends or holidays) after the date the 
USPSTF or ACIP makes an applicable recommendation regarding a qualifying coronavirus 
preventive service. A recommendation from ACIP is considered in effect after it has been 
adopted by the Director of the CDC.  
The Departments are issuing the following FAQs in response to the December 12, 2020 adoption 
by the Director of the CDC of the ACIP recommendation for vaccination with COVID-19 
vaccines within the scope of the Emergency Use Authorization (EUA) or Biologics License 
Application (BLA) for the particular vaccine. 
Q1: How does the December 12, 2020 ACIP recommendation impact when plans and 
issuers must provide coverage without cost sharing for COVID-19 vaccines under section 
3203 of the CARES Act and its implementing regulations?  
Plans and issuers must now cover COVID-19 vaccines and their administration, without cost 
sharing, immediately once the particular vaccine becomes authorized under an EUA or approved 
under a BLA, and according to the scope of the applicable EUA or BLA. 
In a December 12, 2020 meeting, ACIP recommended: For purposes of ACIPs role under the 
Affordable Care Act, ACIP recommends use of COVID-19 vaccines within the scope of the 
Emergency Use Authorization or Biologics License Application for the particular vaccine.2  On 
the same day, the Director of the CDC adopted this ACIP recommendation. Although ACIP has 
made additional recommendations regarding COVID-19 vaccines since December 12, 2020, 
none of those recommendations affect plan and issuer coverage obligations regarding COVID-19 
vaccines under the preventive services regulations, and therefore the December 12, 2020 
recommendation remains in effect for this purpose. 
The requirement under section 3203 of the CARES Act for plans and issuers to cover COVID-19 
vaccines consistent with this ACIP recommendation became effective 15 business days after the 
December 12, 2020 adoption by the CDC. Therefore, effective January 5, 2021, plans and issuers 
must cover, without cost sharing, any COVID-19 vaccine authorized under an EUA or approved 
under a BLA by the FDA immediately upon the vaccine becoming authorized or approved. This 
coverage must be provided consistent with the scope of the EUA or BLA for the particular 
vaccine, including any EUA or BLA amendment, such as to allow for the administration of an 
additional dose to certain individuals, administration of booster doses, or the expansion of the 
age demographic for whom the vaccine is authorized or approved. 
                                                            
2 See https://www.cdc.gov/vaccines/acip/meetings/downloads/slides-2020-12/slides-12-12/COVID-04-VOTE-
508.pdf. See also CDC Adult and Child and Adolescent Immunization Schedules, incorporating the December 12, 
2020 ACIP recommendation, respectively at https://www.cdc.gov/vaccines/schedules/downloads/adult/adult-
combined-schedule.pdf and https://www.cdc.gov/vaccines/schedules/downloads/child/0-18yrs-child-combined-
schedule.pdf. 
2 The Departments prior guidance, FAQs about Families First Coronavirus Response Act and 
Coronavirus Aid, Relief, and Economic Security Act Implementation Part 44 (FAQs Part 44),3 
issued on February 26, 2021, did not explicitly address the general ACIP recommendation for 
COVID-19 vaccines. In addition, the Departments understand that plans and issuers may be 
aware of subsequent ACIP recommendations and that it may be unclear which particular ACIP 
recommendations are relevant for purposes of triggering a coverage obligation under section 
3203 of the CARES Act. This FAQ is intended to notify plans and issuers that the December 12, 
2020 ACIP recommendation is the applicable recommendation for purposes of the definition of 
qualifying coronavirus preventive services under section 3203 of the CARES Act and its 
implementing regulations. Because plans and issuers may reasonably not have understood when 
coverage without cost sharing was required to begin under section 3203 of the CARES Act for 
COVID-19 vaccines authorized or approved (or for which the EUA or BLA was amended) since 
the December 12, 2020 recommendation was adopted, the Departments will only enforce the 
timing requirement to cover, without cost sharing, any COVID-19 vaccine authorized under an 
EUA or approved under a BLA by the FDA immediately upon the vaccine becoming authorized 
or approved (or the EUA or BLA being amended) prospectively, consistent with the scope of the 
particular EUA or BLA, to the extent additional coverage beyond what was articulated in 
previous guidance is required.4  
Q2: Does FAQs Part 44, Q8, continue to apply?  
FAQs Part 44, Q8, which provided guidance from the Departments on when plans and issuers 
must begin providing coverage of COVID-19 vaccines, is superseded to the extent it provides 
that the coverage requirement effective date is related to the vaccine-specific recommendations 
of ACIP, and notations will be made on the HHS and Department of Labor websites to reflect 
this modification. 
HIPAA Nondiscrimination and Wellness Programs  
Under PHS Act section 2705,5 Employee Retirement Income Security Act (ERISA) section 702, 
Internal Revenue Code (Code) section 9802, and the Departments implementing regulations, 
plans and issuers are generally prohibited from discriminating against participants, beneficiaries, 
                                                            
3 See FAQs about Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security 
Act Implementation Part 44 (Feb. 26, 2021), available at https://www.dol.gov/sites/dolgov/files/ebsa/about-
ebsa/our-activities/resource-center/faqs/aca-part-44.pdf and https://www.cms.gov/files/document/faqs-part-44.pdf. 
4 The Departments note that all organizations and providers participating in the CDC COVID-19 Vaccination 
Program (which currently includes any provider administering COVID-19 vaccines) must administer COVID-19 
vaccines at no out-of-pocket cost to the individual receiving the vaccine. For more information on the CDC COVID-
19 Vaccination Program, see https://www.cdc.gov/vaccines/covid-19/vaccination-provider-support.html.  
5 Section 1201 of the Affordable Care Act amended and moved the nondiscrimination and wellness provisions of the 
PHS Act from section 2702 to section 2705, and extended the nondiscrimination provisions to issuers offering 
individual health insurance coverage. The Affordable Care Act also added section 715(a)(1) to ERISA and section 
9815(a)(1) to the Code to incorporate the provisions of part A of title XXVII of the PHS Act, including PHS Act 
section 2705, into ERISA and the Code and make these provisions applicable to group health plans and group health 
insurance issuers. 
3 and enrollees in eligibility, premiums, or contributions based on a health factor.6 With respect to 
group health plans, an exception to this general prohibition allows premium discounts, rebates, or 
modification of otherwise applicable cost-sharing requirements (including copayments, 
deductibles, and coinsurance) in return for adherence to certain programs of health promotion 
and disease prevention, commonly referred to as wellness programs. 
On June 3, 2013, the Departments issued final wellness program regulations7 under PHS Act 
section 2705 and the parallel provisions of ERISA and the Code that address the requirements 
for wellness programs provided in connection with group health coverage. Among other things, 
the final wellness program regulations set the maximum permissible reward (or penalty) under a 
health-contingent wellness program that is part of a group health plan (and any related health 
insurance coverage) at 30 percent of the cost of coverage (or 50 percent for wellness programs 
designed to prevent or reduce tobacco use).8 The final wellness program regulations also address 
the reasonable design of health-contingent wellness programs, and, with respect to rewards 
offered under such programs, the reasonable alternatives that must be offered to avoid prohibited 
discrimination.  
In addition, under section 4980H of the Code, employers may be liable for employer shared 
responsibility payments if they offer coverage that is not affordable. Under 26 CFR 1.36B-
2(c)(3)(v)(A)(4), nondiscriminatory wellness program incentives offered by an employer-
sponsored plan that affect premiums are treated as not earned for the purpose of assessing 
affordability, with the exception of incentives related exclusively to tobacco use. In other words, 
those wellness program incentives unrelated to tobacco use that provide discounts to employees 
are disregarded in assessing affordability, while those incentives unrelated to tobacco use that 
impose surcharges on employees are taken into account in assessing affordability. 
Recently, stakeholders have asked whether group health plans and issuers can provide incentives 
to encourage individuals to receive COVID-19 vaccines. The Departments are issuing these 
FAQs to respond to stakeholder questions. 
                                                            
6 The statute and its implementing regulations set forth eight health status-related factors, which the 2006 regulations 
refer to as health factors for simplicity. Under the statute and the regulations, the eight health factors are health 
status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, 
medical history, genetic information, evidence of insurability (including conditions arising out of acts of domestic 
violence), and disability. 71 FR 75014 (Dec. 13, 2006) (the 2006 regulations). In the Departments view, [t]hese 
terms are largely overlapping and, in combination, include any factor related to an individuals health. 66 FR 1379 
(Jan. 8, 2001). 
7 See 78 FR 33158 (Jun. 3, 2013). These final wellness program regulations update earlier regulations implementing 
the nondiscrimination and wellness program provisions established under the 2006 regulations. 71 FR 75014 (Dec. 
13, 2006). The Affordable Care Act amended the statutory nondiscrimination and wellness provisions to in large 
part reflect the 2006 regulations regarding wellness programs. 
8 The cost of coverage is determined based on the total amount of employer and employee contributions towards the 
cost of coverage for the benefit package under which the employee is (or the employee and any dependents are) 
receiving coverage. 26 CFR 54.9802-1(f)(3)(ii) and (f)(4)(ii), 29 CFR 2590.702-1(f)(3)(ii) and (f)(4)(ii), and 45 CFR 
146.121(f)(3)(ii) and (f)(4)(ii). 
4 Q3: May a group health plan (or health insurance issuer offering coverage in connection 
with a group health plan) offer participants in the plan a premium discount for receiving a 
COVID-19 vaccination?  
Yes, if the premium discount complies with the final wellness program regulations.9,10 A 
premium discount that requires an individual to perform or complete an activity related to a 
health factor, in this case obtaining a COVID-19 vaccination, to obtain a reward would be 
considered a wellness program that must comply with the five criteria for activity-only wellness 
programs described in paragraph (f)(3) of the final wellness program regulations.11  
To satisfy these criteria, a wellness program that provides a premium discount to individuals who 
obtain a COVID-19 vaccination must be reasonably designed to promote health or prevent 
disease and must provide a reasonable alternative standard to qualify for the discount. For 
example, the wellness program may offer a waiver or the right to attest to following other 
COVID-19-related guidelines to individuals for whom it is unreasonably difficult due to a 
medical condition or medically inadvisable to obtain the COVID-19 vaccination in order to 
qualify for the full reward. The plan must also provide notice of the availability of the reasonable 
alternative standard under the wellness program. Further, the reward the plan provides in 
connection with the vaccine incentive program must not exceed 30 percent of the total cost of 
employee-only coverage and must give individuals eligible for the program the opportunity to 
qualify for the reward under the program at least once per year.  
                                                            
9 Compliance with the final wellness program regulations is not determinative of compliance with any other 
provision of the PHS Act, ERISA, the Code, or any other State or Federal law, including the Americans with 
Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). See 26 CFR 54.9802-1(h), 29 
CFR 2590.702(h), 45 CFR 146.121(h), 29 CFR 1630, and 29 CFR 1635. Furthermore, these FAQs address wellness 
program incentives provided by group health plans and health insurance issuers and do not address incentives 
offered by employers as part of workplace policies and unrelated to their group health plan.  Employers considering 
the adoption of COVID-19 vaccination programs that provide incentives should consult Section K of the Equal 
Employment Opportunity Commissions What You Should Know About COVID-19 and the ADA, the 
Rehabilitation Act, and Other EEO Laws.  Questions K.16. through K.21 restate the current guidance under Title I 
of the ADA and Title II of GINA.  
10 See 78 FR 33158 (Jun. 3, 2013). 
11 The final wellness program regulations provide that a health-contingent wellness program that is an activity-only 
wellness program does not violate the wellness program provisions only if all of the following requirements are 
satisfied: (1) the program must give individuals eligible for the program the opportunity to qualify for the reward 
under the program at least once per year; (2) the reward for the activity-only wellness program, together with the 
reward for other health-contingent wellness programs with respect to the plan, must not exceed the applicable 
percentage (defined as 30 percent (or 50 percent for wellness programs designed to prevent or reduce tobacco use) 
of the total cost of employee-only coverage under the plan); (3) the program must be reasonably designed to 
promote health or prevent disease; (4) the full reward under the activity-only wellness program must be available to 
all similarly situated individuals (which includes allowing a reasonable alternative standard (or waiver of the 
otherwise applicable standard) for obtaining the reward for any individual for whom, for that period, it is 
unreasonably difficult due to a medical condition or medically inadvisable to satisfy the otherwise applicable 
standard); and (5) the plan or issuer must disclose in all plan materials describing the terms of an activity-only 
wellness program the availability of a reasonable alternative standard to qualify for the reward (and, if applicable, 
the possibility of waiver of the otherwise applicable standard), including contact information for obtaining a 
reasonable alternative standard and a statement that recommendations of an individual's personal physician will be 
accommodated. See 26 CFR 54.9802-1(f)(3), 29 CFR 2590.702(f)(3), and 45 CFR 146.121(f)(3).  
5 Example: A group health plan offers a 25 percent premium discount of the cost of 
employee-only coverage to all participants who receive a COVID-19 vaccination in 
accordance with the recommendations of ACIP (and does not offer any other reward 
under other health-contingent wellness programs with respect to the plan). To help 
facilitate participants receiving the vaccination, the plan also maintains a toll-free hotline 
to answer questions about COVID-19 vaccination and offer assistance to schedule 
appointments to receive a COVID-19 vaccination. The plan provides the same premium 
discount to individuals for whom it is unreasonably difficult due to a medical condition or 
medically inadvisable to obtain a COVID-19 vaccination if the individual attests to 
complying with the CDCs mask guidelines for unvaccinated individuals. The plan also 
provides notice of the availability of this alternative to all participants. Participants may 
qualify annually for this premium discount.   
Conclusion: The vaccine incentive program meets the criteria to be an activity-only 
health-contingent wellness program. The reward the plan provides in connection with the 
vaccine incentive program does not exceed 30 percent of the total cost of employee-only 
coverage and the opportunity to qualify is offered annually. The plan provides a 
reasonable alternative standard to qualify for the reward, in this case the opportunity to 
attest to complying with the CDCs mask guidelines, to individuals for whom it is 
unreasonably difficult due to a medical condition or medically inadvisable to obtain a 
COVID-19 vaccination, and the plan provides notice of the availability of the reasonable 
alternative standard. This program is also reasonably designed to promote health and 
prevent disease (and is not a subterfuge for discriminating based on a health factor), as 
the program rewards individuals who obtain a COVID-19 vaccination, while the 
reasonable alternative standard is not overly burdensome, and is also designed to prevent 
infection with SARS-CoV-2, the virus that causes COVID-19. Further, the plans 
maintenance of a toll-free hotline to provide information about the COVID-19 vaccine 
and assistance with meeting the underlying standard (in this case, receiving a COVID-19 
vaccination or fulfilling the reasonable alternative) are additional facts and circumstances 
demonstrating that the program is reasonably designed to promote health or prevent 
disease because they help ensure that the program is not overly burdensome. 
Q4: May a group health plan or health insurance issuer condition eligibility for benefits or 
coverage for otherwise covered items or services to treat COVID-19 on participants, 
beneficiaries, or enrollees being vaccinated?  
No. PHS Act section 2705, ERISA section 702, Code section 9802, and the Departments 
implementing regulations generally prohibit plans and issuers from discriminating against 
participants, beneficiaries, and enrollees in eligibility, premiums, or contributions based on a 
health factor.12 The Departments implementing regulations state that rules for eligibility include, 
among other things, rules related to benefits (including rules related to covered benefits and 
                                                            
12 As amended by the Affordable Care Act, the nondiscrimination provisions under PHS Act section 2705 apply to 
health insurance issuers offering group or individual health insurance coverage.  See supra note 5. 
6 benefit restrictions).13 Benefits under the plan must be uniformly available to all similarly 
situated individuals and any restriction on benefits must apply uniformly to all similarly situated 
individuals and must not be directed at individuals based on a health factor.14 Accordingly, plans 
and issuers may not discriminate in eligibility for benefits or coverage based on whether or not 
an individual obtains a COVID-19 vaccination. Furthermore, while there is an exception to the 
general prohibition on discrimination based on a health factor for wellness programs that meet 
federal standards, this exception is available only for premium discounts or rebates, or 
modifications of otherwise applicable cost-sharing mechanisms, and not for denying eligibility 
for benefits or coverage based on a health factor.15   
Q5: How are premium discounts and surcharges for receiving or not receiving the COVID-
19 vaccination, respectively, treated for purposes of determining affordability of coverage 
with respect to the employer shared responsibility payment under section 4980H(b) of the 
Code? 
Wellness incentives that relate to the receipt of COVID-19 vaccinations are treated as not earned 
for purposes of determining whether employer-sponsored health coverage is affordable. 
Although premium incentives are permissible as part of a nondiscriminatory wellness program, 
premium incentives other than incentives relating exclusively to tobacco use, including wellness 
programs encouraging vaccinations for COVID-19, are treated as not earned when determining 
the employees required contribution for an offer of health coverage under 26 CFR 1.36B-
2(c)(3)(v)(A)(4). Thus, for example, if the individual premium contribution under a COVID-19 
vaccination wellness program was reduced by 25 percent, this reduction is disregarded for 
purposes of determining whether the offer of that coverage is affordable for purposes of 
assessing liability for the employer shared responsibility payment. Conversely, if an individuals 
premium contribution for health coverage under a COVID-19 vaccination wellness program is 
increased by a 25 percent surcharge for a non-vaccinated individual, that surcharge would not be 
disregarded in assessing affordability.  
                                                            
13 See 26 CFR 54.9802-1(b)(1)(ii)(F), 29 CFR 2590.702(b)(1)(ii)(F); 45 CFR 146.121(b)(1)(ii)(F) and 147.110. 
14 See 26 CFR 54.9802-1(b)(2)(i)(B), 29 CFR 2590.702(b)(2)(i)(B); 45 CFR 146.121(b)(2)(i)(B) and 147.110. 
15 The general prohibition against discrimination in premiums and contributions under PHS Act section 2705(b), 
ERISA section 702(b), and Code section 9802(b) provides the general prohibition shall not be construed to prevent a 
group health plan, or a health insurance issuer offering group health insurance coverage, from establishing premium 
discounts or rebates or modifying otherwise applicable copayments or deductibles in return for adherence to 
programs of health promotion and disease prevention. The general prohibition against discrimination in rules for 
eligibility under PHS Act section 2705(a), ERISA section 702(a), and Code section 9802(a) contains no such 
exception. 
7