A Division Bench comprising Justices Ashok Bhushan and S Ravindra Bhat directed the Union to ensure that diagnostic tests for COVID-19 are free. Significantly, the direction applies to both approved Government and privately owned labs.
The order came in a public interest petition, which highlighted that many people are unable to afford the price of Rs.4500 fixed by the Indian Council of Medical Research for the screening and confirmation test of COVID-19. Acknowledging the difficulty pointed out by the petitioner, the Court noted that the tests were already free in the Government labs. As for the private labs, it ordered the Government to pass appropriate directions to them in this regard to make the tests available for free.
As to the compensation for private labs for conducting such tests for free, the Bench observed that "The question as to whether the private Laboratories carrying free of cost COVID-19 tests are entitled for any reimbursement of expenses incurred shall be considered later on." Additionally, the Bench also directed that the tests be carried out only in labs approved by the National Accreditation Board for Testing and Calibration Laboratories (NABL) or any other agencies approved by ICMR or WHO.
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On 8 April, a Bench comprising Justices Ashok Bhushan and SR Bhat had directed both government and privately owned labs to make COVID-19 tests available free of cost. In a significant reversal, the Bench today modified its order and held that such free testing in private labs need only be made available to those who are eligible under the Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana ('Ayushman Bharat Yojana'). The Ayushman Bharat Yojana is meant to cover economically poor and vulnerable families. As per the Union, approximately 50 crore beneficiaries are covered under the Scheme and all of them can avail the benefit of free of cost testing even in private labs.
The Court's modification to its order came in an application filed by Advocate Pooja Dhar, represented by Senior Advocate Gopal Sankaranarayanan. Private laboratories, represented by Sr. Adv Mukul Rohatgi, too sought a change in the Court's 8 April order. They argued that free of cost testing was already being administered to those covered under the Ayushman Bharat Scheme. Any further extension of free testing would be financially impossible, argued the intervenors.
After noting the submissions of the intervenors, the Court made it clear that its earlier order was meant to only cover the economically vulnerable sections of the population, who cannot afford paid testing. In light of this, the Court clarified that free testing may only be extended to those who fall under the cover of Ayushman Bharat Yojana and any other economically weaker sections of the society which the Government may notify.
The Court also exhorted the Government to identify any other weaker categories of the society, who may similarly require free testing from private labs. Workers belonging to low income and informal sectors and beneficiaries of the Direct Benefit Transfer Schemes were cited by the Court as examples of classes which the Government may consider for such free testing.
The question of who will compensate the private labs was left open by the Court in its previous order. In its modified order, the Court left it to the Ministry of Health and Family Welfare to issue appropriate guidelines in this regard.
Finally, the Court also directed the Government to ensure wide publicity to its directions as well as to the eligibility guidelines under the Ayushman Bharat Yojana.
Last month, the Supreme Court agreed to hear a PIL by Advocate Sachin Jain, asking for cost regulation of private hospitals. Jain contends that patients should have access to affordable treatment in private hospitals, especially those from poorer backgrounds. He says that public hospitals may not have the capacity alone to deal with an pandemic of this scale. In the last hearing on 30 April, he even submitted that certain private hospitals were seeking to make a profit off of the national COVID-19 crisis. The Court observed that it would have to give hospitals a chance to be heard and issued notice.
In a brief hearing on 27 May, a Bench comprising Chief Justice Bobde, Justice A.S. Bopanna and Justice Hrishikesh Roy directed the Union to make a list of private hospitals that could offer COVID-19 related care at a reduced cost. The Print reports that the Bench went on to rhetorically ask, 'why private [can't] hospitals which had been given land free of cost...treat Covid-19 patients free of cost'? It has given the Union a week to file its reply.
On 27 May, the Chief Justice and Justice Aniruddha Bose agreed to hear a PIL seeking price regulation of private hospitals. In particular, the PIL contends that private hospitals ought not make a profit by treating COVID-19 treatments. In the latest hearing on Friday, the Supreme Court asked the Centre whether private hospitals could treat all COVID-19 patients at subsidized Ayushman Bharat rates. The Union submitted that the scheme was intended for the poor and could not be extended to all classes of society, reports The Hindu.
In addition, the Court questioned why private hospitals that have received subsidized public land, have failed to reduce the price of their COVID-19 treatment. As we reported earlier, the Court has a history of upholding price regulation policy for subsidized private hospitals. The Union pushed back, stating that requiring subsidized hospitals to offer free care would leave them financially unviable. With this, Chief Justice Bobde listed the case for final hearing in two weeks.
The Supreme Court is entertaining a plea by Advocate Sachin Jain, which seeks pricing regulation of COVID treatment offered by private hosptials. In the previous hearing, the Union opposed heavily regulating private hospitals, fearing that this could leave them financially unviable. In a brief hearing today, 14 July, the Chief Justice's Bench directed the main parties to meet outside of court with a health official of the Union, in order to devise a feasible policy. If the Court approves of the policy devised, the Union will issue directions to States under the Disaster Management Act, 2005.
During the hearing, Senior Advocate Harish Salve appearing for a conglomerate of private hospitals stressed that one rate for COVID treatment could not be fixed for all States. He stressed that different States require different models, depending on their unique circumstances. He suggested that the Bench could refer the matter to respective High Courts. Chief Justice Bobde appeared to agree, noting that health is a State subject under the Constitution.
However, Advocate Sachin Jain pushed back, asserting that a single nation-wide policy is required. At this point, Solicitor General Tushar Mehta stated that the Union has constituted a High Level Committee to address the issue. He stressed that it was difficult to find a solution, due to the uncertainty around how long the pandemic may last. He proposed that the parties could meet with an official of the Union, to draft a reasonable policy proposal. Chief Justice Bobde agreed to this proposal and directed the parties to meet with the Union outside of court on 16 July.
The case should come up again next week, at which point in time the Court will review the proposed pricing regulation policy.