Supreme Court relief to private labs: Allows them to charge for COVID 19 tests, but with riders

The apex court maintained that it never intended to make testing free for those who can afford to pay, providing a much awaited relief to private laboratories which were running jittery after the previous order of the court

Medical Dialouges had earlier reported that on April 8th, the SC had issued an interim order in the direction of bringing major respite to those who can't afford to pay Rs 4,500, as capped by the ICMR, for COVID-19 testing, and passed an order to the said effect.

Accordingly, the Central Government has been ordered to issue necessary directions in this regard. The PIL to this effect was preferred by petitioner in person out of growing concern of the unprecedented pandemic COVID-19 which is posing a grave threat of deadly infection among the population of the country. He had sought the intervention of the apex court in directing the DGHS, Union Ministry and ICMR for ensuring to provide free of cost testing facility of COVID-19 to all the citizen of the country at all testing labs irrespective of private or government.

In his petition, the concerned stated that the government of our country is completely caught in a dilemma and is forced to take an irrational decision of arbitrary capping in respect of the testing facility for COVID-19 in private hospital/laboratories at a rate of Rs. 4500 as forwarded by the Indian Council of Medical Research (ICMR).

On 17th March 2020, the council had issued an advisory for testing and confirming including screening of COVID-19 in private hospitals/labs. According to the advisory, the cost of the first step screening assay is Rs. 1500/- and additional confirmatory assays is Rs. 3000.

Read Also: Conduct Coronavirus Testing For Free: Supreme Court Orders All Private Labs, Read Order

In response to the apex court's landmark order, petitioners were filed by two persons, including an orthopaedic surgeon who pointed out that if the testing is made free for all, private labs will be overburdened financially and would slow down the tests for the novel coronavirus or COVID-19.

Submissions were also forwarded by Solicitor General Mehta and Senior advocate Rohatgi that according to the directive of National Health Authority (NHA) under the Ayushman Bharat Yojana, the COVID-19 tests were being conducted free of cost in all private laboratories even when the order was passed on April 8.

Rohatgi, appearing for some private labs, submitted that ICMR has fixed moderate charge of Rs 4,500 for COVID-19 tests to cover the expenses of labs and moreover, persons covered under the 'Ayushman Bharat Yojana' are tested for free of cost.

In case the Labs are not to charge any fee for the tests, it will be impossible for them to carry on the test due to financial constraint, he argued.

Law officer Mehta referred to the ICMR affidavit and submitted that the government is taking all necessary steps for conducting the COVID-19 test and as on date, 157 government labs and 67 private labs are conducting COVID-19 test. "All government hospitals and government labs are conducting COVID-19 test free of cost," Mehta said.

After noting and perusing all the submissions, the bench of Honourable Justices Ashok Bhushan and S Ravindra Bhat modified its April 8th order and said,

"Having heard, counsel for the parties, we are satisfied that sufficient cause has been made out to clarify and modify our order dated April 8, 2020,"

The order dated April 8, intended to make testing in private Labs of COVID-19 free for economically weaker sections of the society who were unable to afford the payment of testing fee as fixed by ICMR for COVID-19.

"We further clarify that the order never intended to make testing free for those who can afford the payment of testing fee fixed by the ICMR for COVID-19"

"We make it clear that the benefit of free testing by a person can be availed only when he or she is covered under any scheme like Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana….We are also of the view that looking to the plight of persons belonging to economically weaker sections of the society, the Government may consider as to whether any other categories of persons belonging to economically weaker sections of the society can be extended benefit of free testing of COVID-19," it said.

The court said it was conscious of the fact that framing of the scheme and its implementation were in the government''s domain who are the best experts in such matters.

The order dated 08.04.2020 is clarified and modified in the following manner by the Supreme Court:

(i) Free testing for COVID-19 shall be available to persons eligible under Ayushman Bharat

Pradhan Mantri Jan Aarogya Yojana as already implemented by the Government of India, and any other category of economically weaker sections of the society as notified by the Government for free testing for COVID-19, hereinafter.

(ii) The Government of India, Ministry of Health and Family Welfare may consider as to whether any other categories of the weaker sections of the society e.g. workers belonging to low-income groups in the informal sectors, beneficiaries of Direct Benefit Transfer, etc. apart from those covered under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana are also eligible for the benefit of free testing and issue appropriate guidelines in the above regard also within a period of one week.

(iii) The private Labs can continue to charge the payment for testing of COVID-19 from persons who are able to make payment of testing fee as fixed by ICMR.

(iv) The Government of India, Ministry of Health and Family Welfare may issue necessary guidelines for reimbursement of cost of free testing of COVID-19 undertaken by private Labs and necessary mechanism to defray expenses and reimbursement to the private Labs.

(v) Central Government to give appropriate publicity to the above, and its guidelines to ensure coverage to all those eligible.

Attached is the Supreme Court order in detail: