Key House Democrats introduced legislation last week that would extend beyond the expiration of the current COVID-19 public health emergency (PHE) the mandate that group health plans cover COVID-19 diagnostic testing and related services without any participant cost sharing. The No Surprises for COVID-19 Tests Act would also apply the new federal ban on surprise bills to COVID-19 tests and close a loophole in the Coronavirus Aid, Relief, and Economic Security (CARES) Act that the lawmakers say has allowed some providers to overcharge for tests.
“One of the most critical steps Congress took at the onset of the pandemic was providing Americans with free COVID-19 testing and vaccinations. We must provide consumers with the certainty that this protection will remain in effect in the months ahead,” said House Education and Labor Committee Chairman Robert C. “Bobby” Scott (D-VA), who teamed with Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-NJ), in introducing the bill. “The last thing families need during this ongoing public health emergency is an unexpected medical bill for a COVID-19 test,” Scott added
Their legislation would extend the free COVID-19 test coverage requirement beyond the PHE until December 31, 2023. Group health plans would be required to continue covering COVID-19 diagnostic testing and related services without any participant cost sharing (including deductibles, copayments and coinsurance), prior-authorization requirements, or other medical-management standards, as long as a licensed healthcare or otherwise authorized provider deems the testing medically appropriate.
The bill’s extension also applies to the requirement that, as of Jan. 15, 2022, group health plans cover at least eight at-home over-the-counter (OTC) COVID-19 diagnostic tests per participant, beneficiary or enrollee in a 30-day period (or a calendar month) without any participant cost sharing, prior-authorization requirements or other medical-management standards. In stark contrast to other COVID-19 tests, the OTC COVID-19 test coverage mandate does not require a participant to obtain an attending healthcare provider’s order or undergo an individualized clinical assessment.
The current PHE runs through April 15, 2022, and Department of Health and Human Services (HHS) officials say the Department will give 60 days’ advance notice for when it plans to end it (or let it expire). Despite political pressure from Republicans to end the PHE, that appears unlikely until at least the end of 2022 given that federal and state policymakers will want to carefully assess how unwinding the PHE will affect a number of pandemic-related benefit plan flexibilities and the potential implications for coverage losses among millions of Americans eligible for Medicaid during the PHE.
The legislation also would apply the consumer protections included in the No Surprises Act, which was signed into law in December 2020 and went into effect on January 1, 2022, to COVID-19 testing and related items and services. Additionally, the bill sunsets a provision of the CARES Act that has allowed providers to bill at whatever “cash price” they list on their website.
It’s unclear whether the legislation could become part of a budget reconciliation package that Democrats may try to revive and pass on party-line votes this year after their Build Back Better measure died last December in the Senate. It’s also doubtful that the bill could advance with bipartisan support outside the reconciliation process. Many Republicans and some Democrats may expect the issue of testing fees to resolve on its own as the pandemic subsides and the Biden administration works to make 1 billion COVID-19 rapid tests available by mail at no charge to Americans.