Insurance Circular Letter No. 12 (2020)

May 22, 2020

STATUTORY AND REGULATORY REFERENCES: N.Y. Insurance Law §§ 3221 and 4303 and 11 NYCRR 52 (Insurance Regulation 62); N.Y. Public Health Law § 579(3); 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”). Ensuring that testing for COVID-19 is widely available is vital to the state’s continuing efforts to control and monitor the virus. In order to increase access to COVID-19 testing for all New Yorkers, Governor Cuomo issued Executive Order 202.24 (“EO 202.24”) on April 25, 2020, authorizing licensed pharmacists to order and administer COVID-19 tests that have been approved by the Food and Drug Administration (“FDA”) to detect a COVID-19 infection or its antibodies. The New York State Department of Health (“DOH”) has interpreted “approved by the FDA” to include authorization by the FDA under emergency use authorization.

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. Coverage for COVID-19 Testing at a Pharmacy

Issuers are reminded that diagnostic testing, including laboratory tests, is 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.

In addition, issuers are reminded that the 57th Amendment to 11 NYCRR 52 (Insurance Regulation 62) promulgated on March 13, 2020, and the CARES Act prohibit the imposition of copayments, coinsurance, or annual deductibles (“cost-sharing”) for COVID-19 infection and antibody testing 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 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. This obligation exists even if the applicable policy or contract does not provide out-of-network benefits.

EO 202.24 allows pharmacists to order and administer COVID-19 tests, subject to compliance with Public Health Law § 579(3) and completion of appropriate training developed by the DOH, for patients suspected of having or suspected of having recovered from a COVID-19 infection. In addition, it permits a New York State-licensed pharmacist to be designated as a qualified healthcare professional for the purpose of directing a limited service laboratory, pursuant to Public Health Law § 579(3), to test patients suspected of a COVID-19 infection or its antibodies, provided that such test is FDA-approved and waived for use in a limited service laboratory.

Based on the foregoing, issuers are directed to provide in-network and out-of-network coverage for COVID-19 testing without cost-sharing at pharmacies consistent with EO 202.24, the CARES Act, the 57th Amendment to 11 NYCRR 52, DOH guidance, and this circular letter.

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

Adherence to this circular letter is essential to ensure that New Yorkers have access to COVID-19 testing necessary to control and monitor COVID-19. 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.

IV. Conclusion

It is imperative for the health and safety of all New Yorkers to have broad access to COVID-19 infection and antibody testing, including testing performed at a pharmacy.  Issuers must provide coverage of COVID-19 infection and antibody tests provided at a pharmacy in accordance with EO 202.24, the CARES Act, the 57th Amendment to 11 NYCRR 52, DOH guidance, and this circular letter.

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

Very truly yours,

Lisette Johnson
Chief, Health Bureau