Below is information based on communications we’ve had with high level representatives at the Department of Financial Services (DFS) regarding who pays for COVID-19 – a question brought up during last week’s NYS Council Member Support and Public Policy call:

Question from NYS Council to DFS (submitted Thursday, August 5):We have received questions about whether insurers must cover COVID-19 diagnostic testing if being done routinely by employees (weekly) who must be tested if they choose not to be vaccinated per employer requirements? We found the FAQ (link below -see #10) on line, but we wanted to confirm the answer is ‘yes’ and to question whether it only applies to certain types of testings (ie. are self administered tests included?)  See question #10 at this linkhttps://www.dfs.ny.gov/industry_guidance/coronavirus/health_insurers_coverage_requirements

Response from DFS via email on August 26:  The coverage requirements are dependent on whether the testing is done for public health surveillance/employment purposes or for the individualized diagnosis/treatment of COVID.  There is Federal guidance on this at https://www.cms.gov/files/document/faqs-part-44.pdf (see question #2) which addresses when coverage is required.  The guidance indicates that plans and issuers are not required to provide coverage of testing such as for public health surveillance or employment purposes. 

Based on our back and forth w/ DFS and the reference documents (linked above for your convenience), our non-legal ‘read’ is that NYS is not imposing coverage for COVID 19 testing beyond what the federal Gov’t requires.  And while not preempted federally, it sounds like DFS leads are not expecting the Department will go further (than the federal guidance).  Therefore, if an employer mandates a vaccination or weekly test policy, insurance would not have to cover such testing unless there is a clinical rationale for the test. Not just surveillance.

As you will recall, guidance from OMH and OASAS re: ‘get vaccinated or test weekly’ for bedded programs has not yet been distributed but we know from our conversation with OASAS General Counsel that (if nothing changes) it will be effective September 27.

Before making decisions to mandate vaccination or testing in your agency, we strongly recommend you seek the advice of counsel.  If you have questions please feel free to call me at 518 461-8200 or send me an email at:  lauri@nyscouncil.org