II 116th CONGRESS 2d Session S. 3499 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. Harris , 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 following 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.

1. Short title; table of contents (a) Short title This Act may be cited as the Free COVID–19 Testing Act . (b) Table of contents The table of contents of this Act is as follows: 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 relating to testing for COVID–19. Sec. 4. Coverage of testing for COVID–19 at no cost sharing under the Medicare 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 uninsured individuals. Sec. 7. Application with respect to TRICARE, coverage for veterans, and coverage for Federal civilians. Sec. 8. Coverage of testing for COVID–19 at no cost sharing for Indians receiving contract health services. 2. Coverage of testing for COVID–19 (a) In general A group health plan and a health insurance issuer offering group or individual health insurance coverage (including a grandfathered health plan (as defined in section 1251(e) of the Patient Protection and Affordable Care Act)) shall provide coverage, and shall not impose any cost sharing (including deductibles, copayments, and coinsurance) requirements or prior authorization or other medical management requirements, for the following items and services furnished during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) of the Social Security Act ( 42 U.S.C. 1320b–5(g) ) beginning on or after the date of the enactment of this Act: (1) In vitro diagnostic products (as defined in section 809.3(a) of title 21, Code of Federal Regulations) for the detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19 that are approved, cleared, or authorized under section 510(k), 513, 515, or 564 of the Federal Food, Drug, and Cosmetic Act, and the administration of such in vitro diagnostic products. (2) Health care provider office visits, urgent care center visits, and emergency room visits that result in an order for or administration of an in vitro diagnostic product described in paragraph (1). (b) Enforcement The provisions of subsection (a) shall be applied by the Secretary of Health and Human Services, Secretary of Labor, and Secretary of the Treasury to group health plans and health insurance issuers offering group or individual health insurance coverage as if included in the provisions of part A of title XXVII of the Public Health Service Act, part 7 of the Employee Retirement Income Security Act of 1974, and subchapter B of chapter 100 of the Internal Revenue Code of 1986, as applicable. (c) Implementation The Secretary of Health and Human Services, Secretary of Labor, and Secretary of the Treasury may implement the provisions of this section through sub-regulatory guidance, program instruction, or otherwise. (d) Terms The terms group health plan , health insurance issuer , group health insurance coverage , and individual health insurance coverage have the meanings given such terms in section 2791 of the Public Health Service Act ( 42 U.S.C. 300gg–91 ), section 733 of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1191b ), and section 9832 of the Internal Revenue Code of 1986, as applicable. 3. Waiving cost sharing under the Medicare program for certain visits relating to testing for COVID–19 (a) In general Section 1833 of the Social Security Act ( 42 U.S.C. 1395l ) is amended— (1) in subsection (a)(1)— (A) by striking and before (CC) ; and (B) by inserting before the period at the end the following: , and (DD) with respect to a specified COVID–19 testing-related service described in paragraph (1) of subsection (cc) for which payment may be made under a specified outpatient payment provision described in paragraph (2) of such subsection, the amounts paid shall be 100 percent of the payment amount otherwise recognized under such respective specified outpatient payment provision for such service, ; (2) in subsection (b), in the first sentence— (A) by striking and before (10) ; and (B) by inserting before the period at the end the following: , and (11) such deductible shall not apply with respect to any specified COVID–19 testing-related service described in paragraph (1) of subsection (cc) for which payment may be made under a specified outpatient payment provision described in paragraph (2) of such subsection ; and (3) by adding at the end the following new subsection: (cc) Specified COVID–19 testing-Related services For purposes of subsection (a)(1)(DD): (1) Description (A) In general A specified COVID–19 testing-related service described in this paragraph is a medical visit that— (i) is in any of the categories of HCPCS evaluation and management service codes described in subparagraph (B); (ii) is furnished during any portion of the emergency period (as defined in section 1135(g)(1)(B)) beginning on or after the date of the enactment of this subsection; and (iii) results in an order for or administration of a diagnostic test described in section 1852(a)(1)(B)(iv)(IV). (B) Categories of HCPCS codes For purposes of subparagraph (A), the categories of HCPCS evaluation and management services codes are the following: (i) Office and other outpatient services. (ii) Hospital observation services. (iii) Emergency department services. (iv) Nursing facility services. (v) Domiciliary, rest home, or custodial care services. (vi) Home services. (2) Specified outpatient payment provision A specified outpatient payment provision described in this paragraph is any of the following: (A) The hospital outpatient prospective payment system under subsection (t). (B) The physician fee schedule under section 1848. (C) The prospective payment system developed under section 1834(o). (D) Section 1834(g), with respect to an outpatient critical access hospital service. (E) The payment basis determined in regulations pursuant to section 1833(a)(3) for rural health clinic services. . (b) Claims modifier The Secretary of Health and Human Services shall provide for an appropriate modifier (or other identifier) to include on claims to identify, for purposes of subparagraph (DD) of section 1833(a)(1), as added by subsection (a), specified COVID–19 testing-related services described in paragraph (1) of section 1833(cc) of the Social Security Act, as added by subsection (a), for which payment may be made under a specified outpatient payment provision described in paragraph (2) of such subsection. (c) Implementation Notwithstanding any other provision of law, the Secretary of Health and Human Services may implement the provisions of, including amendments made by, this section through program instruction or otherwise. 4. Coverage of testing for COVID–19 at no cost sharing under the Medicare Advantage program (a) In general Section 1852(a)(1)(B) of the Social Security Act ( 42 U.S.C. 1395w–22(a)(1)(B) ) is amended— (1) in clause (iv)— (A) by redesignating subclause (IV) as subclause (VI); and (B) by inserting after subclause (III) the following new subclauses: (IV) Clinical diagnostic laboratory test administered during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) beginning on or after the date of the enactment of the Free COVID–19 Testing Act for the detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19 and the administration of such test. (V) Specified COVID–19 testing-related services (as described in section 1833(cc)(1)) for which payment would be payable under a specified outpatient payment provision described in section 1833(cc)(2). ; (2) in clause (v), by inserting , other than subclauses (IV) and (V) of such clause, after clause (iv) ; and (3) by adding at the end the following new clause: (vi) Prohibition of application of certain requirements for COVID–19 testing In the case of a product or service described in subclause (IV) or (V), respectively, of clause (iv) that is administered or furnished during any portion of the emergency period described in such subclause beginning on or after the date of the enactment of this clause, an MA plan may not impose any prior authorization or other utilization management requirements with respect to the coverage of such a product or service under such plan. . (b) Implementation Notwithstanding any other provision of law, the Secretary of Health and Human Services may implement the amendments made by this section by program instruction or otherwise. 5. Coverage at no cost sharing of COVID–19 testing under Medicaid and CHIP (a) Medicaid (1) In general Section 1905(a)(3) of the Social Security Act ( 42 U.S.C. 1396d(a)(3) ) is amended— (A) by striking other laboratory and inserting (A) other laboratory ; (B) by inserting and after the semicolon; and (C) by adding at the end the following new subparagraph: (B) in vitro diagnostic products (as defined in section 809.3(a) of title 21, Code of Federal Regulations) administered during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) beginning on or after the date of the enactment of this subparagraph for the detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19 that are approved, cleared, or authorized under section 510(k), 513, 515, or 564 of the Federal Food, Drug, and Cosmetic Act, and the administration of such in vitro diagnostic products; . (2) No cost sharing (A) In general Subsections (a)(2) and (b)(2) of section 1916 of the Social Security Act ( 42 U.S.C. 1396o ) are each amended— (i) in subparagraph (D), by striking or at the end; (ii) in subparagraph (E), by striking ; and and inserting a comma; and (iii) by adding at the end the following new subparagraphs: (F) any in vitro diagnostic product described in section 1905(a)(3)(B) that is administered during any portion of the emergency period described in such section beginning on or after the date of the enactment of this subparagraph (and the administration of such product), or (G) any medical visit for which payment may be made under the State plan, that is furnished during any such portion of such emergency period, and that relates to testing for COVID–19; and . (B) Application to alternative cost sharing Section 1916A(b)(3)(B) of the Social Security Act ( 42 U.S.C. 1396o–1(b)(3)(B) ) is amended by adding at the end the following new clause: (xi) Any in vitro diagnostic product described in section 1905(a)(3)(B) that is administered during any portion of the emergency period described in such section beginning on or after the date of the enactment of this clause (and the administration of such product) and any visit described in section 1916(a)(2)(G) that is furnished during any such portion. . (C) Clarification The amendments made this paragraph shall apply with respect to a State plan of a territory in the same manner as a State plan of one of the 50 States. (3) State option to provide coverage for uninsured individuals (A) In general Section 1902(a)(10) of the Social Security Act ( 42 U.S.C. 1396a(a)(10) ) is amended— (i) in subparagraph (A)(ii)— (I) in subclause (XXI), by striking or at the end; (II) in subclause (XXII), by adding or at the end; and (III) by adding at the end the following new subclause: (XXIII) during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) beginning on or after the date of the enactment of this subclause, who are uninsured individuals (as defined in subsection (ss)); ; and (ii) in the matter following subparagraph (G)— (I) by striking and (XVII) and inserting , (XVII) ; and (II) by inserting after instead of through subclause (VIII) the following: , and (XVIII) the medical assistance made available to an uninsured individual (as defined in subsection (ss)) who is eligible for medical assistance only because of subparagraph (A)(ii)(XXIII) shall be limited to medical assistance for any in vitro diagnostic product described in section 1905(a)(3)(B) that is administered during any portion of the emergency period described in such section beginning on or after the date of the enactment of this subclause (and the administration of such product) and any visit described in section 1916(a)(2)(G) that is furnished during any such portion . (B) Receipt and initial processing of applications at certain locations Section 1902(a)(55) of the Social Security Act ( 42 U.S.C. 1396a(a)(55) ) is amended, in the matter preceding subparagraph (A), by striking or (a)(10)(A)(ii)(IX) and inserting (a)(10)(A)(ii)(IX), or (a)(10)(A)(ii)(XXIII) . (C) Uninsured individual defined Section 1902 of the Social Security Act ( 42 U.S.C. 1396a ) is amended by adding at the end the following new subsection: (ss) Uninsured individual defined For purposes of this section, the term uninsured individual means, notwithstanding any other provision of this title, any individual who is— (1) not described in subsection (a)(10)(A)(i); and (2) not enrolled in a Federal health care program (as defined in section 1128B(f)), a group health plan, group or individual health insurance coverage offered by a health insurance issuer (as such terms are defined in section 2791 of the Public Health Service Act), or a health plan offered under chapter 89 of title 5, United States Code. . (D) Federal medical assistance percentage Section 1905(b) of the Social Security Act ( 42 U.S.C. 1396d(b) ) is amended by adding at the end the following new sentence: Notwithstanding the first sentence of this subsection, the Federal medical assistance percentage shall be 100 per centum with respect to (and, notwithstanding any other provision of this title, available for) medical assistance provided to uninsured individuals (as defined in section 1902(ss)) who are eligible for such assistance only on the basis of section 1902(a)(10)(A)(ii)(XXIII) and with respect to expenditures described in section 1903(a)(7) that a State demonstrates to the satisfaction of the Secretary are attributable to administrative costs related to providing for such medical assistance to such individuals under the State plan. . (b) CHIP (1) In general Section 2103(c) of the Social Security Act ( 42 U.S.C. 1397cc(c) ) is amended by adding at the end the following paragraph: (9) Certain in vitro diagnostic products for COVID–19 testing The child health assistance provided to a targeted low-income child shall include coverage of any in vitro diagnostic product described in section 1905(a)(3)(B) that is administered during any portion of the emergency period described in such section beginning on or after the date of the enactment of this subparagraph (and the administration of such product). . (2) Coverage for targeted low-income pregnant women Section 2112(b)(4) of the Social Security Act ( 42 U.S.C. 1397ll(b)(4) ) is amended by inserting under section 2103(c) after same requirements . (3) Prohibition of cost sharing Section 2103(e)(2) of the Social Security Act ( 42 U.S.C. 1397cc(e)(2) ) is amended— (A) in the paragraph header, by inserting , COVID–19 testing, before or pregnancy-related assistance ; and (B) by striking category of services described in subsection (c)(1)(D) or and inserting categories of services described in subsection (c)(1)(D), in vitro diagnostic products described in subsection (c)(9) (and administration of such products), visits described in section 1916(a)(2)(G), or . 6. Laboratory reimbursement for diagnostic testing for COVID–19 in uninsured individuals (a) Reimbursement Through the National Disaster Medical System under section 2812 of the Public Health Service Act ( 42 U.S.C. 300hh–11 ), and in coordination with the Administrator of the Centers for Medicare & Medicaid Services, the Secretary of Health and Human Services shall, subject to the availability of appropriations under subsection (c), pay the claims of laboratories for reimbursement, as described in subsection (a)(3)(D) of such section 2812, for health services consisting of diagnostic testing to detect or diagnose COVID–19 in uninsured individuals. The amount that will be paid shall be equal to the amount that would have been paid to a physician or laboratory under Clinical Laboratory Fee Schedule under section 1833(h)(8) of the Social Security Act. (b) Definition In this section, the term uninsured individual means an individual who is not enrolled in— (1) a Federal health care program (as defined under section 1128B(f) of the Social Security Act (42 U.S.C. 1320a–7b(f))); or (2) a group health plan or health insurance coverage offered by a health insurance issuer in the group or individual market (as such terms are defined in section 2791 of the Public Health Service Act ( 42 U.S.C. 300gg–91 )) or a health plan offered under chapter 89 of title 5, United States Code. (c) Funding To carry out this section, there is authorized to be appropriated, and there is hereby appropriated, out of amounts in the Treasury not otherwise obligated, $1,000,000,000, to remain available until expended. 7. Application with respect to TRICARE, coverage for veterans, and coverage for Federal civilians (a) TRICARE The Secretary of Defense may not require any copayment or other cost sharing under chapter 55 of title 10, United States Code, for in vitro diagnostic products described in paragraph (1) of section 2(a) (or the administration of such products) or visits described in paragraph (2) of such section furnished during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) of the Social Security Act ( 42 U.S.C. 1320b–5(g) ) beginning on or after the date of the enactment of this Act. (b) Veterans The Secretary of Veterans Affairs may not require any copayment or other cost sharing under chapter 17 of title 38, United States Code, for in vitro diagnostic products described in paragraph (1) of section 2(a) (or the adminsitration of such products) or visits described in paragraph (2) of such section furnished during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) of the Social Security Act ( 42 U.S.C. 1320b–5(g) ) beginning on or after the date of the enactment of this Act. (c) Federal civilians No copayment or other cost sharing may be required for any individual occupying a position in the civil service (as that term is defined in section 2101(1) of title 5, United States Code) enrolled in a health benefits plan, including any plan under chapter 89 of title 5, United States Code, or for any other individual currently enrolled in any plan under chapter 89 of title 5 for diagnostic tests” after “including any plan under chapter 89 of title 5, United States Code), for in vitro diagnostic products described in paragraph (1) of section 2(a) (or the administration of such products) or visits described in paragraph (2) of such section furnished during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) of the Social Security Act ( 42 U.S.C. 1320b–5(g) ) beginning on or after the date of the enactment of this Act. 8. Coverage of testing for COVID–19 at no cost sharing for Indians receiving contract health services The Secretary of Health and Human Services shall cover, without the imposition of any cost sharing requirements, the cost of providing any COVID–19 related items and services as described in paragraph (1) of section 2(a) (or the administration of such products) or visits described in paragraph (2) of such section furnished during any portion of the emergency period defined in paragraph (1)(B) of section 1135(g) of the Social Security Act ( 42 U.S.C. 320b–5(g) ) beginning on or after the date of the enactment of this Act to Indians (as defined in section 4 of the Indian Health Care Improvement Act ( 25 U.S.C. 1603 )) receiving health services through the Indian Health Service, regardless of whether such items or services have been authorized under the contract health services system funded by the Indian Health Service or is covered as a health service of the Indian Health Service.