Free COVID–19 Testing Act

II 116TH CONGRESS 2D SESSION S. 3499 To amend coverage requirements to ensure that no person incurs cost sharing when receiving a test to confirm a COVID–19 infection. IN THE SENATE OF THE UNITED STATES MARCH 12, 2020 Ms. SMITH (for herself, Mr. PETERS, Mr. SCHUMER, Mrs. MURRAY, Mr. WYDEN, Mr. CASEY, Mr. JONES, Mr. BROWN, Ms. DUCKWORTH, Mr. TESTER, Mr. WHITEHOUSE, Mr. SANDERS, Ms. BALDWIN, Mr. REED, Mr. MURPHY, Ms. KLOBUCHAR, Ms. HIRONO, Mr. SCHATZ, Mr. KING, Mr. COONS, Ms. STABENOW, Mr. BOOKER, Mrs. FEINSTEIN, Ms. HAR- RIS, Mr. UDALL, Ms. HASSAN, Mrs. GILLIBRAND, Mr. HEINRICH, Ms. ROSEN, Mrs. SHAHEEN, Mr. KAINE, Ms. WARREN, Mr. CARPER, Mr. WARNER, Mr. VAN HOLLEN, Mr. DURBIN, Mr. MARKEY, Mr. BLUMENTHAL, Mr. BENNET, and Mr. MENENDEZ) introduced the fol- lowing bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend coverage requirements to ensure that no person incurs cost sharing when receiving a test to confirm a COVID–19 infection. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Free COVID–19 Testing Act’’. 5 VerDate Sep 11 2014 20:19 Mar 27, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 2 •S 3499 IS (b) TABLE OF CONTENTS.—The table of contents of 1 this Act is as follows: 2 Sec. 1. Short title; table of contents. Sec. 2. Coverage of testing for COVID–19. Sec. 3. Waiving cost sharing under the Medicare program for certain visits re- lating to testing for COVID–19. Sec. 4. Coverage of testing for COVID–19 at no cost sharing under the Medi- care Advantage program. Sec. 5. Coverage at no cost sharing of COVID–19 testing under Medicaid and CHIP. Sec. 6. Laboratory reimbursement for diagnostic testing for COVID–19 in un- insured individuals. Sec. 7. Application with respect to TRICARE, coverage for veterans, and cov- erage for Federal civilians. Sec. 8. Coverage of testing for COVID–19 at no cost sharing for Indians re- ceiving contract health services. SEC. 2. COVERAGE OF TESTING FOR COVID–19. 3 (a) IN GENERAL.—A group health plan and a health 4 insurance issuer offering group or individual health insur- 5 ance coverage (including a grandfathered health plan (as 6 defined in section 1251(e) of the Patient Protection and 7 Affordable Care Act)) shall provide coverage, and shall not 8 impose any cost sharing (including deductibles, copay- 9 ments, and coinsurance) requirements or prior authoriza- 10 tion or other medical management requirements, for the 11 following items and services furnished during any portion 12 of the emergency period defined in paragraph (1)(B) of 13 section 1135(g) of the Social Security Act (42 U.S.C. 14 1320b–5(g)) beginning on or after the date of the enact- 15 ment of this Act: 16 (1) In vitro diagnostic products (as defined in 17 section 809.3(a) of title 21, Code of Federal Regula- 18 tions) for the detection of SARS–CoV–2 or the diag- 19 VerDate Sep 11 2014 03:03 Mar 23, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 3 •S 3499 IS nosis of the virus that causes COVID–19 that are 1 approved, cleared, or authorized under section 2 510(k), 513, 515, or 564 of the Federal Food, 3 Drug, and Cosmetic Act, and the administration of 4 such in vitro diagnostic products. 5 (2) Health care provider office visits, urgent 6 care center visits, and emergency room visits that 7 result in an order for or administration of an in 8 vitro diagnostic product described in paragraph (1). 9 (b) ENFORCEMENT.—The provisions of subsection 10 (a) shall be applied by the Secretary of Health and Human 11 Services, Secretary of Labor, and Secretary of the Treas- 12 ury to group health plans and health insurance issuers of- 13 fering group or individual health insurance coverage as if 14 included in the provisions of part A of title XXVII of the 15 Public Health Service Act, part 7 of the Employee Retire- 16 ment Income Security Act of 1974, and subchapter B of 17 chapter 100 of the Internal Revenue Code of 1986, as ap- 18 plicable. 19 (c) IMPLEMENTATION.—The Secretary of Health and 20 Human Services, Secretary of Labor, and Secretary of the 21 Treasury may implement the provisions of this section 22 through sub-regulatory guidance, program instruction, or 23 otherwise. 24 VerDate Sep 11 2014 00:00 Mar 27, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 4 •S 3499 IS (d) TERMS.—The terms ‘‘group health plan’’, ‘‘health 1 insurance issuer’’, ‘‘group health insurance coverage’’, and 2 ‘‘individual health insurance coverage’’ have the meanings 3 given such terms in section 2791 of the Public Health 4 Service Act (42 U.S.C. 300gg–91), section 733 of the Em- 5 ployee Retirement Income Security Act of 1974 (29 6 U.S.C. 1191b), and section 9832 of the Internal Revenue 7 Code of 1986, as applicable. 8 SEC. 3. WAIVING COST SHARING UNDER THE MEDICARE 9 PROGRAM FOR CERTAIN VISITS RELATING 10 TO TESTING FOR COVID–19. 11 (a) IN GENERAL.—Section 1833 of the Social Secu- 12 rity Act (42 U.S.C. 1395l) is amended— 13 (1) in subsection (a)(1)— 14 (A) by striking ‘‘and’’ before ‘‘(CC)’’; and 15 (B) by inserting before the period at the 16 end the following: ‘‘, and (DD) with respect to 17 a specified COVID–19 testing-related service 18 described in paragraph (1) of subsection (cc) 19 for which payment may be made under a speci- 20 fied outpatient payment provision described in 21 paragraph (2) of such subsection, the amounts 22 paid shall be 100 percent of the payment 23 amount otherwise recognized under such respec- 24 VerDate Sep 11 2014 03:03 Mar 23, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 5 •S 3499 IS tive specified outpatient payment provision for 1 such service,’’; 2 (2) in subsection (b), in the first sentence— 3 (A) by striking ‘‘and’’ before ‘‘(10)’’; and 4 (B) by inserting before the period at the 5 end the following: ‘‘, and (11) such deductible 6 shall not apply with respect to any specified 7 COVID–19 testing-related service described in 8 paragraph (1) of subsection (cc) for which pay- 9 ment may be made under a specified outpatient 10 payment provision described in paragraph (2) 11 of such subsection’’; and 12 (3) by adding at the end the following new sub- 13 section: 14 ‘‘(cc) SPECIFIED COVID–19 TESTING-RELATED 15 SERVICES.—For purposes of subsection (a)(1)(DD): 16 ‘‘(1) DESCRIPTION.— 17 ‘‘(A) IN GENERAL.—A specified COVID– 18 19 testing-related service described in this para- 19 graph is a medical visit that— 20 ‘‘(i) is in any of the categories of 21 HCPCS evaluation and management serv- 22 ice codes described in subparagraph (B); 23 ‘‘(ii) is furnished during any portion 24 of the emergency period (as defined in sec- 25 VerDate Sep 11 2014 03:03 Mar 23, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 6 •S 3499 IS tion 1135(g)(1)(B)) beginning on or after 1 the date of the enactment of this sub- 2 section; and 3 ‘‘(iii) results in an order for or admin- 4 istration of a diagnostic test described in 5 section 1852(a)(1)(B)(iv)(IV). 6 ‘‘(B) CATEGORIES OF HCPCS CODES.—For 7 purposes of subparagraph (A), the categories of 8 HCPCS evaluation and management services 9 codes are the following: 10 ‘‘(i) Office and other outpatient serv- 11 ices. 12 ‘‘(ii) Hospital observation services. 13 ‘‘(iii) Emergency department services. 14 ‘‘(iv) Nursing facility services. 15 ‘‘(v) Domiciliary, rest home, or custo- 16 dial care services. 17 ‘‘(vi) Home services. 18 ‘‘(2) SPECIFIED OUTPATIENT PAYMENT PROVI- 19 SION.—A specified outpatient payment provision de- 20 scribed in this paragraph is any of the following: 21 ‘‘(A) The hospital outpatient prospective 22 payment system under subsection (t). 23 ‘‘(B) The physician fee schedule under sec- 24 tion 1848. 25 VerDate Sep 11 2014 03:03 Mar 23, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 7 •S 3499 IS ‘‘(C) The prospective payment system de- 1 veloped under section 1834(o). 2 ‘‘(D) Section 1834(g), with respect to an 3 outpatient critical access hospital service. 4 ‘‘(E) The payment basis determined in 5 regulations pursuant to section 1833(a)(3) for 6 rural health clinic services.’’. 7 (b) CLAIMS MODIFIER.—The Secretary of Health 8 and Human Services shall provide for an appropriate 9 modifier (or other identifier) to include on claims to iden- 10 tify, for purposes of subparagraph (DD) of section 11 1833(a)(1), as added by subsection (a), specified COVID– 12 19 testing-related services described in paragraph (1) of 13 section 1833(cc) of the Social Security Act, as added by 14 subsection (a), for which payment may be made under a 15 specified outpatient payment provision described in para- 16 graph (2) of such subsection. 17 (c) IMPLEMENTATION.—Notwithstanding any other 18 provision of law, the Secretary of Health and Human 19 Services may implement the provisions of, including 20 amendments made by, this section through program in- 21 struction or otherwise. 22 VerDate Sep 11 2014 03:03 Mar 23, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 8 •S 3499 IS SEC. 4. COVERAGE OF TESTING FOR COVID–19 AT NO COST 1 SHARING UNDER THE MEDICARE ADVAN- 2 TAGE PROGRAM. 3 (a) IN GENERAL.—Section 1852(a)(1)(B) of the So- 4 cial Security Act (42 U.S.C. 1395w–22(a)(1)(B)) is 5 amended— 6 (1) in clause (iv)— 7 (A) by redesignating subclause (IV) as 8 subclause (VI); and 9 (B) by inserting after subclause (III) the 10 following new subclauses: 11 ‘‘(IV) Clinical diagnostic labora- 12 tory test administered during any por- 13 tion of the emergency period defined 14 in paragraph (1)(B) of section 15 1135(g) beginning on or after the 16 date of the enactment of the Free 17 COVID–19 Testing Act for the detec- 18 tion of SARS–CoV–2 or the diagnosis 19 of the virus that causes COVID–19 20 and the administration of such test. 21 ‘‘(V) Specified COVID–19 test- 22 ing-related services (as described in 23 section 1833(cc)(1)) for which pay- 24 ment would be payable under a speci- 25 VerDate Sep 11 2014 03:03 Mar 23, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 9 •S 3499 IS fied outpatient payment provision de- 1 scribed in section 1833(cc)(2).’’; 2 (2) in clause (v), by inserting ‘‘, other than sub- 3 clauses (IV) and (V) of such clause,’’ after ‘‘clause 4 (iv)’’; and 5 (3) by adding at the end the following new 6 clause: 7 ‘‘(vi) PROHIBITION OF APPLICATION 8 OF CERTAIN REQUIREMENTS FOR COVID–19 9 TESTING.—In the case of a product or 10 service described in subclause (IV) or (V), 11 respectively, of clause (iv) that is adminis- 12 tered or furnished during any portion of 13 the emergency period described in such 14 subclause beginning on or after the date of 15 the enactment of this clause, an MA plan 16 may not impose any prior authorization or 17 other utilization management requirements 18 with respect to the coverage of such a 19 product or service under such plan.’’. 20 (b) IMPLEMENTATION.—Notwithstanding any other 21 provision of law, the Secretary of Health and Human 22 Services may implement the amendments made by this 23 section by program instruction or otherwise. 24 VerDate Sep 11 2014 03:03 Mar 23, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 10 •S 3499 IS SEC. 5. COVERAGE AT NO COST SHARING OF COVID–19 1 TESTING UNDER MEDICAID AND CHIP. 2 (a) MEDICAID.— 3 (1) IN GENERAL.—Section 1905(a)(3) of the 4 Social Security Act (42 U.S.C. 1396d(a)(3)) is 5 amended— 6 (A) by striking ‘‘other laboratory’’ and in- 7 serting ‘‘(A) other laboratory’’; 8 (B) by inserting ‘‘and’’ after the semicolon; 9 and 10 (C) by adding at the end the following new 11 subparagraph: 12 ‘‘(B) in vitro diagnostic products (as defined in 13 section 809.3(a) of title 21, Code of Federal Regula- 14 tions) administered during any portion of the emer- 15 gency period defined in paragraph (1)(B) of section 16 1135(g) beginning on or after the date of the enact- 17 ment of this subparagraph for the detection of 18 SARS–CoV–2 or the diagnosis of the virus that 19 causes COVID–19 that are approved, cleared, or au- 20 thorized under section 510(k), 513, 515, or 564 of 21 the Federal Food, Drug, and Cosmetic Act, and the 22 administration of such in vitro diagnostic products;’’. 23 (2) NO COST SHARING.— 24 VerDate Sep 11 2014 00:00 Mar 27, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 11 •S 3499 IS (A) IN GENERAL.—Subsections (a)(2) and 1 (b)(2) of section 1916 of the Social Security 2 Act (42 U.S.C. 1396o) are each amended— 3 (i) in subparagraph (D), by striking 4 ‘‘or’’ at the end; 5 (ii) in subparagraph (E), by striking 6 ‘‘; and’’ and inserting a comma; and 7 (iii) by adding at the end the fol- 8 lowing new subparagraphs: 9 ‘‘(F) any in vitro diagnostic product de- 10 scribed in section 1905(a)(3)(B) that is admin- 11 istered during any portion of the emergency pe- 12 riod described in such section beginning on or 13 after the date of the enactment of this subpara- 14 graph (and the administration of such product), 15 or 16 ‘‘(G) any medical visit for which payment 17 may be made under the State plan, that is fur- 18 nished during any such portion of such emer- 19 gency period, and that relates to testing for 20 COVID–19; and’’. 21 (B) APPLICATION TO ALTERNATIVE COST 22 SHARING.—Section 1916A(b)(3)(B) of the So- 23 cial Security Act (42 U.S.C. 1396o–1(b)(3)(B)) 24 VerDate Sep 11 2014 03:03 Mar 23, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3499.IS S3499 khammond on DSKJM1Z7X2PROD with BILLS 12 •S 3499 IS is amended by adding at the end the following 1 new clause: 2 ‘‘(xi) Any in vitro diagnostic product 3 described in section 1905(a)(3)(B) that is 4 administered during any portion of the 5 emergency period described in such section 6 beginning on or after the date of the enact- 7 ment of this clause (and the administration 8 of such product) and any visit described in 9 section 1916(a)(2)(G) that is furnished 10 during any such portion.’’. 11 (C) CLARIFICATION.—The amendments 12 made this paragraph shall apply with respect to 13 a State plan of a territory in t [Text truncated for display. 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