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

The regulation took effect March 13, 2020. It expires on September 9, 2020, unless further extended.

The regulation took effect March 16, 2020. It expires on September 9, 2020, unless further extended.

The regulations apply 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 regulations apply 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. 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.

The DFS emergency regulation (58th Amendment to Regulation 62) filed on March 16, 2020 requires that, during the state of emergency for COVID-19, no policy or contract delivered or issued for delivery in New York that provides comprehensive health insurance coverage may impose, and no insured is required to pay, copayments, coinsurance, or annual deductibles for an in-network service delivered via telehealth when such service would have been covered under the policy if it had been delivered in person. The waiver of cost-sharing for telehealth services is not limited to services to diagnose COVID-19 but applies to any otherwise covered service provided by telehealth when medically appropriate.

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.

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.

Issuers are required to notify in-network providers so they are made aware that they should not charge insureds for copayments, coinsurance, or annual deductibles in accordance with the regulations at the time the services are provided. This notification ensures that no barriers exist for COVID-19 testing and that insureds have access to other needed health care services when available by telehealth.

Issuers are required to send written notification to in-network providers that they shall not collect any annual deductibles, copayments, or coinsurances in accordance with the regulations. Since the situation is rapidly changing, issuers are encouraged to send the notification electronically to their providers as soon as possible. Issuers should also post the notification on their website along with any other information issuers have regarding COVID-19.

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.

DFS recognizes the constraints that COVID-19 has placed on its regulated entities. As such, DFS is granting its domestic insurers and/or their ultimate holding companies an extension to file the required Holding Company Registration statements and amendments, and enterprise risk reports until June 30, 2020.

Circular Letter No. 8 was issued March 20, 2020. It is effective as of that date.

Circular Letter No. 8 is effective for 90 days from the date of the letter, which is June 18, 2020, subject to further evaluation as the COVID-19 situation develops.

Circular Letter No. 8 applies to utilization review performed on or after March 20, 2020 for 90 days from the date of the letter.

Circular Letter No. 8 suspends certain utilization review requirements for 90 days from March 20, 2020, due to the state of emergency for COVID-19. Issuers should work with hospitals regarding utilization review that occurred during the state of emergency due to COVID-19 before March 20.

Circular Letter No. 8 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, and prepaid health services plans. It also applies to independent agents performing utilization review under contract with such issuers and licensed independent adjusters.

Yes. Circular Letter No. 8 applies to the New York State Empire Plan, which provides coverage to New York state employees and retirees.

Yes. Circular Letter No. 8 applies to Medicaid Managed Care plans, Child Health Plus, and the Essential Plan.

DFS does not regulate MLTCs or PACE, but strongly encourages these plans follow the Circular Letter. MLTCs and PACE may contact the New York Department of Health to inquire further regarding utilization review during the state of emergency for COVID-19.

Medicare and Medicare Advantage plans are strongly encouraged to follow the Circular Letter. These plans should monitor communications from the Centers for Medicare and Medicaid Services, which has oversight of these plans, for more information.

Workers’ Compensation plans should contact the New York State Workers’ Compensation Board for information regarding utilization review during the state of emergency for COVID-19.

No fault insurance does not have preauthorization or concurrent review requirements. Claims under No Fault insurance may be reviewed retrospectively. Providers have 45 days to submit claims under No Fault insurance, or later with a reasonable justification. The state of emergency for COVID-19 would be considered a reasonable justification.

Third-party administrators, which are licensed by the Department as independent adjusters, and any other self-funded plans are strongly encouraged to apply the provisions of Circular Letter No. 8 to their utilization review procedures.

A “hospital” for purposes of Circular Letter No. 8 is as defined in 11 N.Y.C.R.R. § 52.2(m), which is consistent with the definition of a general hospital in Public Health Law § 2801(10).

The suspension of preauthorization and concurrent review applies to a hospital as defined in 11 NYCRR 52.2(m), which is consistent with the definition of a general hospital in Public Health Law § 2801, including inpatient mental health or substance use disorder services provided at such hospitals.

Yes. The suspension of preauthorization requirements applies to any scheduled surgery or hospital admission. This includes obstetric services.

No. The suspension of preauthorization for inpatient rehabilitation services applies to inpatient rehabilitation services following an inpatient hospital stay and does not apply to inpatient rehabilitation services that do not follow an inpatient hospital stay.

Circular Letter No. 8 applies to the preauthorization of scheduled surgeries or admissions to hospitals, concurrent review of inpatient hospital services, retrospective review of inpatient hospital services and emergency services provided at in-network hospitals, and preauthorization for inpatient rehabilitation services or home health care following an inpatient hospital stay. It applies to all such services for any diagnosis and is not limited to COVID-19.

No. Part YY of Chapter 56 of the Laws of 2020 adds Insurance Law § 4902(a)(13) and Public Health Law § 4902(1)(k). These provisions state that issuers may not retrospectively deny emergency department and inpatient hospital services as not medically necessary that were provided to an insured for treatment of COVID-19 (during a declared state disaster emergency related to COVID-19) by a general hospital certified pursuant to Public Health Law Article 28.

Yes. Issuers should suspend non-essential audits of hospital payments during the state of emergency for COVID-19. The 24-month time limit on overpayment recovery in Insurance Law § 3224-b(b) or any other contractual time limit should be extended the same amount of time as the suspension.

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.