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

Applicability of the DFS Regulations (57th and 58th Amendments to Regulation 62) to Waive Cost-Sharing for Certain Services during the Novel Coronavirus (COVID-19) State of Emergency

Q-1. When does the Department of Financial Services (DFS) regulation that waives cost-sharing for COVID-19 testing (57th Amendment to Regulation 62) take effect? When does the regulation expire?
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The regulation took effect March 13, 2020. It expires on September 9, 2020, unless further extended.

Q-2. When does the DFS regulation that waives cost-sharing for telehealth services during the COVID-19 State of Emergency (58th Amendment to Regulation 62) take effect? When does the regulation expire?
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The regulation took effect March 16, 2020. It expires on September 9, 2020, unless further extended.

Q-3. What types of insurance are subject to the regulations?
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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”).

Q-4. Do the regulations apply to the New York State Empire Plan?
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Yes. The regulations apply to the New York State Empire Plan, which provides coverage to New York state employees and retirees.

Q-5. Do the regulations apply to Medicaid Managed Care, Child Health Plus, or the Essential Plan?
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No, but issuers should monitor communications from the Department of Health for more information, because similar protections are in place.

Q-6. Do these regulations apply to Medicare?
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No, but issuers should monitor communications from the Centers for Medicare and Medicaid Services for more information.

Requirements Regarding Waiver of Copayments, Coinsurance, or Annual Deductibles for COVID-19 Testing (57th Amendment to Regulation 62)

Q-7. For what benefits are issuers required to waive copayments, coinsurance, and annual deductibles for COVID-19 testing?
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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.
Q-8. Is the issuer required to pay the insured’s copayments, coinsurance, and annual deductibles to the health care provider?
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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.

Q-9. Is the prohibition on copayments, coinsurance, and annual deductibles for in-network laboratory tests to diagnose COVID-19 limited to one laboratory test?
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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.

Q-10. Is the prohibition on copayments, coinsurance, and annual deductibles for 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, or an emergency department of a hospital limited to one visit?
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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.

Q-11. May a copayment, coinsurance, or annual deductible be collected if an insured presents at in-network provider’s office with flu-like symptoms and the provider suspects COVID-19, tests the insured for the flu or other respiratory diseases in order to rule out these diseases, and refers the insured to another provider to perform the COVID-19 test?
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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.

Q-12. May a copayment, coinsurance, or annual deductible be collected if an insured presents at an emergency department with flu-like symptoms and the provider suspects COVID-19, but tests the insured for the flu or other respiratory diseases other than COVID-19 in order to rule out these diseases?
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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.

Q-13. If the insured has a high deductible health plan as defined in the Internal Revenue Code § 223(c)(2), is the deductible required to be waived for laboratory tests and visits to diagnose COVID-19?
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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.

Q-14. If an insured has a catastrophic plan as defined in 42 U.S.C. § 18022(e), is the deductible required to be waived for laboratory tests and visits to diagnose COVID-19?
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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.

Q-15. May follow-up care be subject to copayments, coinsurance, or annual deductibles?
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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.

Telehealth Requirements

Q-16. Are issuers required to cover services provided via telehealth?
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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.

Q-17. What is the insured’s cost-sharing for services delivered through telehealth as required by the 58th Amendment to Regulation 62?
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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.

Q-18. May issuers limit coverage of telehealth services to in-network providers?
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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.

Q-19. Is there additional guidance regarding telehealth services?
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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.

Notification to In-Network Providers of DFS Regulations

Q-20. Why are issuers required to notify in-network providers of the requirements to waive cost-sharing for tests and visits to diagnose COVID-19 and all telehealth services?
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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.

Q-21. The regulations require issuers to provide written notification to in-network providers that they shall not collect copayments, coinsurance, or annual deductibles in accordance with the regulations. How are issuers required to notify providers?
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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.

DFS Regulatory Filings and Examinations

Q-22. Issuers are required to send certain filings containing wet signatures to DFS. Given the current work from home environment, an issuer may not be able to meet paper or wet signature filing requirements. How should issuers proceed with these regulatory filings?
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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.

Q-23. Is DFS is suspending or delaying financial or market conduct examinations?
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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.

Q-24. Is DFS delaying the filing due date for Holding Company Registration statements and amendments filed pursuant to 11 NYCRR § 80-1.2 (Insurance Regulation 52), and enterprise risk reports filed pursuant to 11 NYCRR § 82.2 (Insurance Regulation 203)?
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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.

Insurance Circular Letter No. 8 (2020) - Coronavirus, Utilization Review, and Emergency Admission Notification Requirements

Effective Dates

Q-25. When is Insurance Circular Letter No. 8 (2020) (hereinafter “Circular Letter No. 8”) effective?
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Circular Letter No. 8 was issued March 20, 2020. It is effective as of that date.

Q-26. How long are the provisions of Circular Letter No. 8 applicable?
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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.

Q-27. Does Circular Letter No. 8 apply to hospital admissions as of March 20, 2020, or does it apply to services reviewed on or after March 20, 2020?
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Circular Letter No. 8 applies to utilization review performed on or after March 20, 2020 for 90 days from the date of the letter.

Q-28. Circular Letter No. 8 suspends certain utilization review requirements for 90 days from the date of the letter due to the state of emergency for COVID-19. Executive Order No. 202 declares the state of emergency in New York for COVID-19 starting March 7, 2020 until September 7, 2020. How is utilization review handled from the date the state of emergency was issued until Circular Letter No. 8 was issued?
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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.

Applicability

Q-29. What types of entities are subject to Circular Letter No. 8?
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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.

Q-30. Does Circular Letter No. 8 apply to the New York State Empire Plan?
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Yes. Circular Letter No. 8 applies to the New York State Empire Plan, which provides coverage to New York state employees and retirees.

Q-31. Does Circular Letter No. 8 apply to Medicaid Managed Care, Child Health Plus, or the Essential Plan?
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Yes. Circular Letter No. 8 applies to Medicaid Managed Care plans, Child Health Plus, and the Essential Plan.

Q-32. Does Circular Letter No. 8 apply to Medicaid managed long term care (“MLTCs”) or Programs of All-Inclusive Care for the Elderly (“PACE”)?
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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.

Q-33. Does Circular Letter No. 8 apply to Medicare or Medicare Advantage plans?
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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.

Q-34. Does Circular Letter No. 8 apply to Workers’ Compensation plans?
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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.

Q-35. Does Circular Letter No. 8 apply to No Fault insurance?
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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.

Q-36. Does Circular Letter No. 8 apply to self-funded plans?
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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.

Suspension of Certain Utilization Review Procedures

Q-37. Circular Letter No. 8 applies to scheduled surgeries or admissions to hospitals, inpatient hospital services, emergency services provided at hospitals, and discharges from hospitals to inpatient rehabilitation services or home health care. For the purposes of Circular Letter No. 8, how is a “hospital” defined?
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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).

Q-38. Does Circular Letter No. 8 apply to psychiatric units of general hospitals or freestanding psychiatric hospitals?
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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.

Q-39. Does the suspension of preauthorization requirements for scheduled surgeries or admissions include obstetric deliveries?
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Yes. The suspension of preauthorization requirements applies to any scheduled surgery or hospital admission. This includes obstetric services.

Q-40. Does Circular Letter No. 8 also apply to community referrals for inpatient rehabilitation services (i.e., inpatient rehabilitation services that do not follow an inpatient hospital stay)?
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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.

Q-41. Does Circular Letter No. 8 apply to utilization review of any diagnosis or is it limited to the diagnosis and treatment of COVID-19?
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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.

Q-42. May an issuer review COVID-19 treatment provided in an emergency department or as an inpatient hospital service retrospectively and deny such claims as not medically necessary?
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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.

Overpayment Recovery

Q-43. Circular Letter No. 8 requests issuers to toll the 24-month time limit on overpayment recovery in Insurance Law § 3224-b(b) or any other contractual time limit during the state of emergency for COVID-19. Will issuers be able to exceed the 24-month time limit on overpayment recovery?
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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.

Antibody Testing

Q-44. Are copayments, coinsurance, and annual deductibles waived for COVID-19 antibody tests?
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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.