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A House Democrat’s powerful case for making coronavirus testing free, explained

Why Katie Porter thinks the Trump administration can make coronavirus testing free right now.

Rep. Katie Porter in the Rayburn Building on October 22, 2019.
Tom Williams/CQ-Roll Call, Inc via Getty Images

As the United States scrambles to roll out enough coronavirus tests and get a full picture of the pandemic, there is one other nagging concern: Are Americans going to be on the hook for thousands of dollars in Covid-19 medical bills if they get tested and treated?

We’ve already seen such reports, and we already know people skip urgent medical care because of costs. So Rep. Katie Porter (D-CA) had one question for CDC Director Robert Redfield at a congressional hearing on Thursday: Would he commit to using an obscure federal statute to make coronavirus testing free for every American?

At first, Redfield avoided giving a yes-or-no answer.

“I can say that we’re gonna do everything we can to make sure everybody can get the care they need,” he said when Porter asked about an existing legal authority she said could be used to cover testing for every American.

“Not good enough,” Porter said. “You have the existing authority.”

The back-and-forth drags on for a few more rounds; at one point, Redfield said he’s going to review it. Porter says again that’s not good enough. Eventually, Redfield said yes, he would work on it — sort of.

“I think you’re an excellent questioner, so my answer is yes,” he told Porter.

We’ll see if the Trump administration follows through. Porter’s office says the CDC “told us he did in fact have this authority, and they’d prepare him for this question.”

The CDC by publication time did not provide a response to an inquiry asking to confirm the Porter office’s account.

Nevertheless, law experts do think the federal government could have some flexibility under federal law to try to put everybody’s Covid-19 testing on the federal books — and now, in the face of a pandemic, is the time to get creative about how to make it happen.

“This is one of those times when, lord knows, I wouldn’t want to be too finicky about strict readings of government regulations,” Nicholas Bagley, a law professor at the University of Michigan, told me over the phone. “I fully support any effort to make sure we get testing for people. Sometimes in an emergency like this, you push the boundaries.”

Porter’s office said they believed the authority for CDC to declare, under an emergency, that everybody’s Covid-19 testing be done free of charge comes from 42 CFR § 71.30, which says: “the Director may authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, and conditional release.”

The surrounding statute covers foreign nationals coming into the US. But Bagley said he thought it was possible to interpret this or another provision on interstate quarantine broadly enough to apply it to testing for American citizens and that it may be more apt. Either way, it may still be a stretch, but it is not on its face a ridiculous reading, Bagley said over email:

These regulations aren’t built for a pandemic with flu-like spread. They’re built for Ebola patients (say) who are airlifted to specialized hospitals that then have to spend an arm and a leg treating them. And CDC has used the regulations to enter into memoranda of agreement with hospitals for those kinds of patients.

Can the regulations be jury-rigged? Maybe, subject of course to the availability of appropriations. I need to dig more to say for sure, and even then the answer may not be perfectly clear. But it would certainly make for an aggressive use of existing regulatory authority.

The coronavirus outbreak seems serious enough to warrant some creativity. Everybody is looking for a way to make sure Americans are covered during this pandemic. It would also probably require Congress to approve funding, as Bagley noted.

US officials are intervening to make coronavirus care more affordable

Reports have already surfaced of patients put under coronavirus quarantine being on the hook for thousands of dollars in bills. At one of the drive-through testing stations set up in Seattle, uninsured patients could face a substantially higher price than people who have an insurance card. The need to reduce those cost burdens is real, especially in a pandemic.

Some states are doing what they can to lower those burdens. New York Gov. Andrew Cuomo announced last week he would require insurers in New York and Medicaid to cover treatment and testing cost-free with an emergency declaration. States have some discretion with what their Medicaid programs cover, and more states are taking their own actions: California Gov. Gavin Newsom issued a similar order in the past few days.

States are limited in what they can do, though ERISA, the federal law that regulates the large employer health insurance plans that cover about 100 million Americans, is a barrier to state officials who want to do more. Cuomo’s order, for example, noted it applied to private health plans regulated by the state — the plans available to small businesses or individuals — but not the self-funded employer plans covered by ERISA. It’s another way a more decentralized health system complicates the response to a pandemic.

Rep. Ruben Gallego (D-AZ) announced last week he would introduce a bill that would make Medicaid cover testing for and treatment of Covid-19 for every American, no matter how they get their insurance. This would be an important change to US health care: The federal government would assume responsibility for medical care for every American under these particular circumstances.

And the Trump administration appears to see a need to do something drastic, too, even if experts don’t think some of their proposed actions will have a significant effect.

Vice President Mike Pence, for example, said Covid-19 testing and treatment would be treated as an “essential health benefit” (a standard established by the Affordable Care Act) to cover everyone’s care. But that change would actually not apply to the self-funded plans, nor to Medicare, as Bagley wrote for the Incidental Economist:

Even if they did, insurers can (and do!) impose cost-sharing for EHBs, and could do so for a COVID-19 test. It’s a completely meaningless statement.

Though that may be, Pence’s statement still reflected a real need to put at least a temporary patch on our health system. Everybody seems to agree on that. Katie Porter, with this inventive reading of an existing federal authority, might have found another route to that goal.

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