Widespread testing for the novel Coronavirus is generally recognized as an important tool in combating the spread of the virus. The World Health Organization is an advocate for broad testing, so as to better locate incidents of infection for purposes of isolation, caring, and tracking.
However, the cumulative cost for such testing is significant. In a study commissioned by the American Health Insurance Plans, it is estimated that the cost could range from $6 billion to $25 billion. [See https://www.ahip.org/wp-content/uploads/AHIP-Wakely-COVID-19-Testing-Report.pdf.] The expenses are particularly high in the nursing home industry where states may have requirements for frequent staff and patient testing. For example, in New York, nursing home staff are required to be tested twice a week and patients must be tested weekly.
The key question is who bears the burden for the costs of testing? Is it the consumer? Is it private insurance? Is it government? Or is it employers? During the early stage of the pandemic in the United States, on March 18, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA). It was a time in which testing resources were scarce, and all segments of the health care community wanted to remove any financial barriers for testing for those individuals who were experiencing severe symptoms or were at serious risk of exposure to the virus. Accordingly, Section 6001 of the FFCRA, generally requires that group health plans and health insurers offering group or individual health insurance coverage provide benefits for certain services related to testing for the detection COVID-19 during the pandemic. Moreover, the FFCRA provides that plans and insurers must not impose any cost-sharing requirements, prior authorization, or any other medical management requirements with respect to such services.
In the subsequent months, as access to testing substantially expanded and more people are seeking testing, the commitment to free testing has been scaled back. Pursuant to guidance issued by the Trump Administration on April 11, 2020 and June 23, 2020 [see 2020 https://www.cms.gov/files/document/FFCRA-Part-42-FAQs.pdf and https://www.cms.gov/files/document/FFCRA-Part-43-FAQs.pdf], coverage for testing under the requirements of 6001 is triggered “when medically appropriate for the individual, as determined by the individual’s attending health care provider in accordance with current accepted medical standards of medical practice.” The June guidance further stated that, “testing conducted to screen for general workplace health and safety (such as employee ‘return to work’ programs), for public health surveillance for SARS-Co-V-2, or for any other purpose not primarily intended for individualized diagnosis or treatment of COVID-19 or other health condition is beyond the scope of section 6001 of the FFCRA.”
However, the Centers for Disease Control and Prevention (CDC) states that testing is appropriate in the following five scenarios:
- Individuals with signs or symptoms consistent with COVID-19
- Asymptomatic individuals with recent known or suspected exposure to SARS-CoV-2 to control transmission
- Asymptomatic individuals without known or suspected exposure to SARS-CoV-2 for early identification in special settings
- Individuals being tested to determine resolution of infection
- Individuals being tested for purposes of public health surveillance for SARS-CoV-2
[see CDC Testing Guidance].
The money does not appear to support CDC recommendations.
While federal administrative guidance seeks to eliminate testing for certain purposes, the fundamental question is when is testing medically appropriate for the individual? Currently, it is an interpretation and judgment call for the provider with potentially costly ramifications for the patients, insurance organizations and government.
If you have questions regarding how current legal requirements impact your practice’s or facility’s coverage of the cost of COVID testing, please contact us. You may subscribe to the Fox Health Care Law Matters Blog here for updates.