Free COVID-19 Testing Only For Persons Under Ayushman Bharat Scheme And EWS Categories; SC Allows Private Labs To Charge Others [Read Order]

The Supreme Court on Monday modified the April 8 order which directed that the testing for COVID-19 should be done free of cost both in government and private laboratories.

The Court said that free testing will be available to 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.

The Court also passed the following directions :

• 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.
• 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.

The Court left it to the Centre to decide ob whether any other categories of the weaker sections of the society should also be given the benefit of free testing.

A bench comprising Justices Ashok Bhushan and S Ravindra Bhat passed the modified order in an application filed by Dr. Kaushal Kant, who said that direction for free testing will affect the functioning of private labs.

The Court passed the modification based on the fact that free testing with regard to one category of people i.e. those covered under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana was already in place when the first order was passed on April 8. 

The Centre also supported the modification of the order. 

Solicitor General Tushar Mehta submitted that there are 157 government labs where people can get free testing, irrespective of economic status.

The Solicitor General pointed out to the "limited resources" of the state and highlighted that the fight against COVID-19 may go on for months.

Senior Advocate Mukul Rohatgi, appearing for several laboratories, submitted that the ICMR has fixed Rs.4,500/- on a moderate side to cover the expenses of Labs for conducting the COVID-19 test. He submitted that under the Ayushman Bharat Yojana, about 10.7 crore poor and vulnerable families, which means approximately 50 crores beneficiaries, are covered and they can avail the benefit of free of cost COVID-19 test even in the private labs.

In the affidavit filed by ICMR dated 12.04.2020 it was stated that according to directive issued by the National Health Authority under the Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana, the testing fee for COVID-19 will be free of cost in all private labs.

In the light of these submissions, the bench observed :

"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. We are conscious that framing of the scheme and its implementation are in the Government domain, who are the best experts in such matters".

The order for free testing was passed on April 8 in a Public Interest Litigation filed by Shashank Deo Sudhi, who challenged the Government decision to fix the cost of the COVID-19 testing in private labs as Rs 4500.

On that occasion, the Court had observed that the entitlement of private laboratories to get reimbursement for the costs incurred by them could be considered later.

The bench had said that it found "prima facie substance" in the submission of petitioner that permitting private Labs to charge Rs.4500 for screening and confirmation test of COVID-19 at this time of national calamity may not be within means of a large part of population of this country

The bench also had observed that no person should be deprived to undergo the COVID-19 test due to non-payment of capped amount of Rs.4500.

 "The private Hospitals including Laboratories have an important role to play in containing the scale of pandemic by extending philanthropic services in the hour of national crisis. We thus are satisfied that the petitioner has made out a case for issuing a direction to the respondents to issue necessary direction to accredited private Labs to conduct free of cost COVID-19 test", stated the order passed on April 8.

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