Health Insurer Guidance on Coverage Requirements for Novel Coronavirus (COVID-19)

The regulation took effect March 13, 2020.

The regulation applies to a policy or contract delivered or issued for delivery in this State that provides comprehensive health insurance coverage by an insurer authorized to write accident and health insurance in New York State, corporations organized pursuant to Insurance Law Article 43, municipal cooperative health benefit plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law §1124, and health maintenance organizations certified pursuant to Public Health Law Article 44 (hereinafter “issuers”).

Yes. The regulation applies to the New York State Empire Plan, which provides coverage to New York state employees and retirees.

No, but issuers should monitor communications from the Department of Health for more information, because similar protections are in place.

No, but issuers should monitor communications from the Centers for Medicare and Medicaid Services for more information.

The regulation provides that no issuer shall impose copayments, coinsurance, and annual deductibles for the following services when covered under the policy or contract:

• in-network laboratory tests to diagnose COVID-19; and
• visits to diagnose COVID-19 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 when in-network telehealth services are used, or an emergency department of a hospital.

Yes. The issuer is required to pay the provider the entire allowed amount for the services specified in the regulation, including the insured’s copayment, coinsurance, and annual deductible. The insured is not required to pay the copayment, coinsurance, and annual deductible.

No. The regulation prohibits issuers from imposing copayments, coinsurance, or annual deductibles on in-network laboratory tests necessary to diagnose COVID-19. It is not limited to one such test.

No. The regulation prohibits issuers from imposing copayments, coinsurance, or annual deductibles on visits to diagnose COVID-19 at an in-network provider’s office, an in-network urgent care center, any other in-network outpatient provider setting able to diagnose the COVID-19, or an emergency department of a hospital. It is not limited to one such visit if more than one visit is necessary for the insured to be diagnosed.

No.  Insurers cannot deny coverage of a COVID-19 diagnostic test from a licensed or authorized health care provider because an insured is asymptomatic or has no known or suspected exposure to COVID-19.  When an insured seeks and receives a COVID-19 diagnostic test from a licensed or authorized health care provider, insurers generally must assume that the receipt of the test is the result of an “individualized clinical assessment,” and the test must be covered without cost-sharing, prior authorization, or other medical management requirements.  Insurers are not required to cover testing conducted for public health surveillance.  See further clarification from the Centers for Medicare and Medicaid Services (CMS) in this FAQ.

No. If the in-network provider suspects COVID-19, then copayments, coinsurance, or annual deductibles should be waived for the office visit, even if the in-network provider must refer the insured to another provider for a COVID-19 test.

No. The regulation prohibits issuers from imposing copayments, coinsurance, or annual deductibles on in-network laboratory tests necessary to diagnose COVID-19. This waiver applies, where appropriate, to tests used to rule out other respiratory diseases before testing for COVID-19.

Yes.  If the policy or contract is a high deductible health plan as defined in Internal Revenue Code § 223(c)(2), the services listed in the regulation may not be subject to the plan’s annual deductible.  The federal Department of Treasury recently issued guidance that permits a high deductible health plan to cover these services before the deductible without it affecting the tax-preferred status of the plan and an individual’s corresponding health savings account.  Therefore, the regulation prohibiting issuers from imposing copayments, coinsurance, or annual deductibles for in-network laboratory tests necessary to diagnose COVID-19 applies to high deductible health plans.  For more information, see IRS Notice 2020-15.

Yes.  If the policy or contract is a catastrophic plan, as defined in 42 U.S.C. § 18022(e), the services listed in the regulation may not be subject to the plan’s annual deductible. The Centers for Medicare & Medicaid Services issued guidance to permit catastrophic plans to cover these services before the deductible.  For more information, see the CMS guidance.

Yes. Copayments, coinsurance, or annual deductibles may be imposed for any follow-up care or treatment for COVID-19, including an inpatient hospital admission, as otherwise permitted by law or regulation.

Yes. Insurance Law §§ 3217-h and 4306-g prohibit an issuer from excluding coverage for a service that is otherwise covered under the contract or policy because the service is delivered using telehealth. An issuer may subject the coverage of a service delivered via telehealth to utilization review and quality assurance requirements that are consistent with those established for the same service when not delivered via telehealth. “Telehealth” means the use of electronic information and communication technologies by a health care provider to deliver health care services to an insured while the insured and the provider are in different locations.

Yes. Insurance Law §§ 3217-h and 4306-g expressly permit an issuer to exclude coverage for services provided through telehealth if the health care provider is not an in-network provider and the insured’s policy or contract does not cover out-of-network services.

Yes.  DFS has issued guidance on telehealth services, including what constitutes telehealth during the state of emergency for COVID-19.  For more information, see Insurance Circular Letter No. 6 (2020) the DFS telehealth guidance.

All regulated entities that are required to file should, at a minimum, submit the filing electronically. Hard copies with wet signatures must be filed with the DFS Health Bureau within 60 days of the issuer returning to its offices. If the issuer is unable to submit the filings electronically, the issuer should let DFS know as soon as possible.

Financial or market conduct examinations are not being postponed at this time. If an issuer has difficulties responding to an examination and would like to request that an examination be postponed, the issuer should submit a formal request in writing to DFS with reasons for the request.

Last year, in light of the challenges posed by COVID-19, DFS granted an extension for these filings. DFS will not be extending the filing due date for 2021. All domestic insurers and/or their ultimate holding companies that are required to file Holding Company Registration statements and amendments, and enterprise risk reports must file before their respective due dates.

Yes. According to Federal guidance, COVID-19 antibody tests are intended for use in the diagnosis of the disease or condition of having current or past infection with SARS-CoV-2, the virus which causes COVID-19. The CARES Act prohibits the imposition of copayments, coinsurance, or annual deductibles (“cost-sharing”) for COVID-19 infection and antibody testing when the insured’s attending healthcare provider determines that the testing is medically appropriate, regardless of whether the testing is performed in-network or out-of-network. With respect to out-of-network providers, if the issuer does not have a negotiated rate with the provider, then pursuant to § 3202 of the CARES Act, the issuer must reimburse the provider in an amount equal to 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. This obligation exists even if the applicable policy or contract does not provide out-of-network benefits.

Insurance Circular Letter No. 14 (2020) applies to any of the following entities that have delivered or issued for delivery in this State a policy or contract that provides for health insurance, dental, or vision coverage using a network of participating providers: insurers authorized to write accident and health insurance in New York State, corporations organized pursuant to Insurance Law Article 43, municipal cooperative health benefit plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law §1124, and health maintenance organizations certified pursuant to Public Health Law Article 44, and prepaid health services plans.

Yes. The Department of Health has confirmed that the requirements of Insurance Circular Letter No. 14 (2020) also apply to Medicaid Managed Care plans, Child Health Plus, and the Essential Plan.

No. The Circular Letter does not apply to Medicare and Medicare Advantage plans; however, these plans are strongly encouraged to follow the Circular Letter. Medicare and Medicare Advantage plans should monitor communications from the Centers for Medicare and Medicaid Services, which has oversight of these plans, for more information.

No. The Circular Letter does not apply to self-funded plans; however, these plans are strongly encouraged to apply the provisions of Circular Letter No. 14 (2020) to their dental or health coverage that uses a network of participating providers.

No. Insurance Circular Letter No. 14 (2020) only addresses situations in which participating providers are charging insureds fees and other charges in addition to the insured’s financial responsibility for in-network covered services.

No. Insurance Circular Letter No. 14 (2020) advises insurers that a participating provider may not charge an extra fee to the insured for PPE used during a visit in addition to the insured’s financial responsibility for covered services.

No. A participating provider may not charge an insured fees or other charges in addition to the insured’s financial responsibility for covered services. A participating provider should not require an insured to sign a consent to agree to pay any extra fees due to COVID-19, including costs due to PPE.

The Department advised insurers to resolve reimbursement issues regarding increased costs due to COVID-19 directly with their participating providers, including for PPE.

Yes. Electronic notification is permissible in a manner and form agreed upon by the insurer and provider, including via the provider web portal, as long as each participating provider receives an individual notification.

No. An insurer should provide such notice to its participating providers individually. Inclusion on the insurer’s website alone does not ensure that every participating provider will be aware of the notice.

Yes. Electronic notification is permissible to the extent that an insured has agreed in advance to accept electronic notifications. For insureds who have not opted for electronic notifications, the insurer may send the notice to the group and request that the group distribute it to each certificate holder. With respect to individual direct payment coverage, notice may be provided by telephone or in writing to individual insureds who have not agreed to accept electronic notifications.

No. An insurer should provide notice to its insureds individually to ensure they are aware of the notice. However, insurers are also strongly encouraged to supplement the notification by providing information on their websites and in their monthly newsletters.

Insurers should report any complaints they receive from insureds regarding PPE fees and any information that is obtained from participating providers.

Insurers should resolve any issues regarding increased costs due to COVID-19 directly with their participating providers. Insurers should contact their participating providers when they receive a complaint from an insured regarding PPE fees, as necessary, in order to resolve the complaint.