Legal Alert

States Waive Cost-Sharing for Screening and Testing in Face of COVID-19 Pandemic

March 13, 2020

To encourage individuals to seek prompt medical attention for the coronavirus (COVID-19), a number of states have taken, or are considering, action to eliminate the costs associated with testing and treating the virus and to increase access to such testing and treatment.

Colorado, California, and New York, for example, have directed commercial insurers to eliminate co-pays, deductibles, and co-insurance (cost sharing) for screening and testing for the coronavirus and to increase access to care. Colorado’s directive requires insurers to: 1. engage in outreach and education to ensure that covered individuals know about their existing telehealth options; 2. cover an additional early refill on necessary prescriptions so that individuals who may later need to limit close contact with others may seek a necessary refill before it is due, and not charge a different cost-sharing amount for early COVID-19 prescription refills; and 3. waive all cost-sharing in the form of deductibles, co-pays, and co-insurance for COVID-19 testing and treatment at an in-network office, urgent care or emergency room when a covered person is seeking COVID-19 testing. Further, Colorado is requiring carriers to cover testing that is done out-of-network if an in-network provider is unable to do so. 

Similarly, New York and California direct commercial health insurers to waive cost-sharing for COVID-19 screening and testing and for visits to a doctor’s office or other health care provider when the purpose is to seek COVID-19 testing. California encourages but does not require insurers to cover early refills and to maximize telehealth services. However, the State does require insurers to take steps to ensure providers, advice line nurses, call center representatives, and customer service departments are aware of the directive so that they may communicate the coverage to insureds.

At the time of publication, Maryland and Washington have also issued cost-sharing waiver directives, and many other states have issued guidance requesting but not requiring such cost-sharing waivers or have negotiated deals with private insurance companies. These states include Connecticut, Oregon, New Jersey, Tennessee, and Georgia.

A unique issue arises for high deductible health plans (HDHPs) under these state directives. The U.S. Department of Treasury and Internal Revenue Service issued Notice 2020-15 on March 12, however, to permit HDHPs to cover testing for and treatment of COVID-19 without a deductible and without jeopardizing the plan's HDHP status.  Because of Notice 2020-15, states’ cost-sharing waivers can apply to HDHPs.

Additional steps are being taken at the national level. The U.S. House of Representatives is putting forward the Families First Coronavirus Response Act (H.R. 6201), which would require cost-sharing waivers from insured and self-funded health plans and health insurers. The bill also directs funding for testing those who are uninsured. At the time of publication, reports are that the U.S. Senate is considering alternative legislation. 

As the coronavirus continues to spread and additional positive cases are confirmed in the U.S., we expect that more states will choose to exercise their regulatory authority over insurance and require COVID-19 screening and coverage. Once a vaccine is developed it is reasonable to predict that states will mandate coverage of it as well.

Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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