Insurance Circular Letter No. 11 (2020)
May 19, 2020

TO: All Insurers Authorized to Write Accident and Health Insurance in New York State, Article 43 Corporations, Health Maintenance Organizations, Student Health Plans Certified Pursuant to Insurance Law § 1124, Municipal Cooperative Health Benefit Plans, Prepaid Health Services Plans, and Licensed Independent Adjusters
RE: COVID-19 Testing of Nursing Home and Adult Care Facility Personnel

STATUTORY AND REGULATORY REFERENCES:  N.Y. Insurance Law §§ 3221 and 4303 and 11 NYCRR 52 (Insurance Regulation 62); 42 U.S.C. § 247d; Families First Coronavirus Response Act (“FFCRA”); Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)

I. Purpose

New York has been the hardest hit of all states with respect to the number of infections and deaths from the novel coronavirus (“COVID-19”).  In particular, widespread, ongoing community transmission of COVID-19 is occurring in some areas of New York State, with a large number of cases impacting nursing homes and adult care facilities.  The congregant nature of these facilities presents unique challenges in limiting transmission of COVID-19.  On a daily basis, personnel within these facilities work in close proximity with residents who are particularly vulnerable to contracting, or have already contracted, COVID-19.  Individuals who are infected can be infectious before they become symptomatic, and may spread the disease to other residents or facility personnel. There is currently no vaccine or treatment for COVID-19.  As of today’s date, there have been more than 3,000 confirmed COVID-19 deaths within nursing homes and adult care facilities.  Given these circumstances, maintaining a safe environment for residents and a safe work environment depends on appropriate use of personal protective equipment and routine COVID-19 testing to identify cases as early as possible.

On May 10, 2020, Governor Andrew M. Cuomo signed Executive Order 202.30 (“EO 202.30”), which requires operators and administrators of all nursing homes and adult care facilities, including all adult homes, enriched housing programs and assisted living residences, to test or make arrangements for the twice weekly testing of all personnel, including all employees, contract staff, medical staff, operators and administrators, for COVID-19.  On May 19, 2020, the New York State Department of Health (“DOH”) issued a directive that provides that twice weekly testing is medically necessary and essential to identify new cases among nursing home and adult care facility personnel.

The purpose of this circular letter is to advise insurers authorized to write accident and health insurance in this state, Article 43 corporations, health maintenance organizations, student health plans certified pursuant to Insurance Law § 1124, municipal cooperative health benefit plans, and prepaid health services plans (collectively, “issuers”) of their responsibilities to provide coverage for such COVID-19 tests.

II.Testing Nursing Home and Adult Care Facility Personnel for COVID-19

Section 3202 of the CARES Act requires an issuer providing coverage of items and services described in § 6001(a) of division F of the FFCRA, codified as Public Law 116–127, to reimburse a health service provider who or that renders diagnostic testing for COVID-19.  Under § 3202, if the issuer has a negotiated rate with the provider in effect before the public health emergency declared under 42 U.S.C. § 247d, then the negotiated rate will apply throughout the period of the declaration.  If the issuer does not have a negotiated rate with the provider, then the issuer must reimburse the provider in an amount that equals the cash price for the service as listed by the provider on a public internet website, or the issuer may negotiate a rate with the provider for less than the cash price.

In addition, issuers are reminded that diagnostic testing, including laboratory tests, are an essential health benefit, and as such, must be covered under individual and small group comprehensive health insurance policies and contracts.  Insurance Law §§ 3221(l)(3) and 4303(e) and (f) require issuers of large group comprehensive health insurance policies and contracts to make available coverage for laboratory tests, and such tests are typically covered in the base policy or contract.

DOH guidance provides that testing for COVID-19 shall be authorized by a healthcare provider for individuals who meet one or more of the following criteria:

  • An individual is symptomatic or has a history of symptoms of COVID-19 (e.g., fever, cough, or trouble breathing), particularly if the individual is 70 years of age or older, the individual has a compromised immune system, or the individual has an underlying health condition;
  • An individual has had close (i.e., within six feet) or proximate contact with a person known to be positive with COVID-19;
  • An individual is subject to a precautionary or mandatory quarantine;
  • An individual is employed as a health care worker, first responder, or other essential worker who directly interacts with the public while working;
  • An individual presents with a case where the facts and circumstances – as determined by the treating clinician in consultation with state or local department of health officials – warrant testing;
  • An individual is included under other criteria set by DOH based on an individual’s geographic place of residence, occupation, or other factors that DOH may deem relevant for COVID-19 testing purposes; or
  • Any individual who would return to his or her workplace in Phase 1 of New York’s regional phased reopening plan.

Due to the elevated risk for personnel and patients at nursing homes and adult care facilities, including adult homes, enriched housing programs, and assisted living residences in New York, and in consideration of EO 202.30 and DOH guidance, personnel at these nursing homes or facilities meet the criteria for COVID-19 testing.

Issuers are reminded that under the Insurance Law and regulations promulgated thereunder, they may not deny coverage for testing of personnel at nursing homes or adult care facilities without considering the DOH guidance set forth above and looking at the facts and circumstances of each case to determine whether the testing was medically necessary.  For example, and without limiting the circumstances that would render testing medically necessary, if a person were exposed to COVID-19 (including where a home or facility has substantial infections), or that person were symptomatic or ultimately tested positive for COVID-19, by definition the testing was medically necessary.

In addition, issuers should be aware that both the federal government and DOH have issued their own guidance recently on COVID-19 testing.  Guidance issued on April 11, 2020 jointly by the U.S. Departments of Labor, Health and Human Services, and the Treasury states that “Section 6001(a) of the FFCRA provides that plans and issuers shall not impose any cost-sharing requirements (including deductibles, copayments, and coinsurance), prior authorization requirements, or other medical management requirements for” items and services that must be provided under § 6001(a) of the FFCRA, as amended by § 3201 of the CARES Act.  The guidance further states that “[t]hese items and services must be covered without cost sharing when medically appropriate for the individual, as determined by the individual’s attending healthcare provider in accordance with accepted standards of current medical practice” (emphasis added).  The federal guidance defines an “attending provider” as an individual who is licensed under applicable state law, who is acting within the scope of the provider’s license, and who is directly responsible for providing care to a patient.

Furthermore, on May 19, 2020, DOH issued a directive that advised that twice weekly testing is medically necessary and essential to identify new cases among nursing home and adult care facility personnel.  The directive explains that this will help prevent spread of the disease within a facility and will also ensure that nursing home and adult care facility personnel who suffer a COVID-19 infection will be able to identify the infection at the earliest opportunity, and promptly seek necessary medical care.

Based on the CARES Act, the FFCRA, and the Insurance Law and regulations promulgated thereunder, issuers are directed to provide in-network and out-of-network coverage for COVID-19 testing for twice weekly testing of nursing home and adult care facility personnel.

III. Cost-Sharing for COVID-19 Testing of Nursing Home and Adult Care Facility Personnel

The Superintendent of Financial Services promulgated the 57th Amendment to 11 NYCRR 52 (Insurance Regulation 62) on March 13, 2020, which, in part, prohibits any policy or contract delivered or issued for delivery in New York State that provides comprehensive health insurance coverage from imposing copayments, coinsurance, or annual deductibles for in-network laboratory tests and visits to diagnose COVID-19 covered under the policy or contract at an in-network provider’s office, an in-network urgent care center, any other in-network outpatient provider setting able to diagnose COVID-19 (including a pharmacy), or an emergency department of a hospital.  Furthermore, the CARES Act prohibits the imposition of copayments, coinsurance, or annual deductibles for both in-network and out-of-network services, even if the applicable policy or contract does not provide out-of-network benefits.

Issuers are directed to comply with the requirements of this regulation for COVID-19 testing covered under comprehensive health insurance policies and contracts and provided to nursing home and adult care facility personnel covered under the policy or contract consistent with EO 202.30, including the prohibition on cost sharing for such testing.

IV. Applicability to Third-Party Administrators of Self-Funded Plans

Adherence to this circular letter is essential to ensure that nursing home and adult care facility personnel receive the necessary COVID-19 testing to help keep both personnel and residents safe.  Third-party administrators that are licensed by the Department as independent adjusters are strongly encouraged to apply the provisions of this circular letter to their administrative services arrangements with self-funded plans.

V. Conclusion

It is imperative for the health and safety of nursing home and adult care facility personnel and residents to ensure that personnel are tested in accordance with EO 202.30.  Issuers must provide coverage of COVID-19 tests in accordance with EO 202.30, the CARES Act, the FFCRA, and this circular letter without imposing copayments, coinsurance, or deductibles.

This circular letter is based on the facts and circumstances set forth above with respect to COVID-19 testing of nursing home and adult care facility personnel specified in EO 202.30.

Please direct any questions regarding this circular letter by email to [email protected].

                                                                                   

Very truly yours,

 

Lisette Johnson
Chief, Health Bureau