On May 11, 2015, the Department of Labor, the Department of Health and Human Services, and the Treasury issued Part XXVI of the series FAQ’s About Affordable Care Act Implementation” (“the FAQ’s”), which provides guidance on the required coverage of preventive care related to various areas.
Section 2713 of the Public Health Service Act (“PHS”) and its implementing regulations related to coverage of preventive services require non-grandfathered group health plans and health insurance coverage offered in the individual or group market to provide benefits for (without cost sharing) various federally-recommended items or services related to preventive health, such as immunizations recommended by the CDC, and evidence-informed preventive care and screening for infants, children, adolescents, and women. The FAQ’s shed light on the ACA’s requirements with regard to preventive care in several specific areas.
The ACA’s required preventive services include screening for women with a family member who has a BRCA-related cancer (breast, ovarian, tubal or peritoneal cancer) to identify a family history that may be associated with an increased risk for potentially harmful mutations in BRCA-1 or BRCA-2 (breast cancer susceptibility genes). Women with positive screening results should receive genetic counseling and, if indicated by such counseling, genetic testing. HHS believes that this recommendation applies to both genetic counseling and genetic testing, as determined by her health care provider.
The FAQ’s clarify that, as long as a woman has not been diagnosed with a BRCA-related cancer, a plan or issuer must cover (without cost sharing) preventive screening, genetic counseling, and genetic testing, if appropriate for a woman, based on her attending provider’s recommendation.
In 2013, the Departments issued an FAQ stating that the Health Resources and Services Administration guidelines ensure women’s access to the full range of FDA-approved contraceptive methods without cost-sharing. However, the guidance also suggested that the health plans could use “reasonable” medical management techniques to control costs by incentivizing certain products or services. Differing opinions existed on what exactly constituted “reasonable medical management techniques as applied to contraceptive coverage. The Departments issued clarifying guidance related to contraceptive coverage and related reasonable medical management techniques, and will begin applying this guidance in plan/policy years beginning on or after July 10, 2015.
The FAQ’s clarified that a plan or issuer must cover, without cost-sharing at least one form of contraception in each of the eighteen (18) contraceptive methods identified in the FDA’s current Birth Control Guide, including clinical services needed for provision of the contraceptive method. A plan or issuer cannot completely exclude coverage for any contraceptive method.
However, within each contraceptive method, a plan or issuer can use reasonable medical management techniques to incentive use of particular products or services, such as incentivizing one of several types of IUD’s with progestin, or discouraging use of brand-name items over generic items.
If a plan or issuer chooses to use reasonable medical management techniques to incentivize use of a particular product or service within a contraceptive method, there must be an (i) easily accessible; (ii) transparent; and (iii) sufficiently expedient, exceptions process that is not unduly burdensome on the individual or the provider. This exceptions process requires a plan or issuer to cover (without cost sharing) an FDA-approved item based on a determination of medical necessity with respect to that individual. The plan or issuer must defer to the determination of the individual’s attending provider. Thus, if a plan/issuer incentives use of a generic progestin only oral contraceptive pill, but the individual’s attending provider believes that the brand-name progestin only oral contraceptive pill is medically necessary for that individual, there must be a sufficient exceptions process in place through which the plan/issuer provides coverage without cost-sharing of the brand-name product.
Many of the preventive services required by the ACA are gender-specific. The FAQ’s clarify that non-grandfathered health plans cannot limit coverage of preventive services based on an individual’s sex assigned at birth, gender identity, or gender recorded by the plan. If the individual otherwise satisfies the criteria under the recommendation or guidelines and is eligible under the terms of the plan, the plan must provide the services that the individuals’ provider determines are medically appropriate. For example, a plan must cover, without cost-sharing, a pap smear for a transgender man whose cervix is still intact.
Coverage of Dependents
Historically, group health plans been able to restrict coverage for maternity care to employees and spouse, and not provide such coverage to dependents of the employee. However, the FAQ’s suggest that if the plan/issuer covers dependent children, the dependent children must be provided the full range of recommended preventive services applicable to them, without cost sharing. The FAQ’s suggest that preconception care and many services necessary for prenatal care are preventive services that a plan/issuer must cover.
The FAQ’s clarify that a plan/issuer may not impose cost-sharing with respect to anesthesia services performed in connection with preventive colonoscopy if the attending provider determines that anesthesia would be medically appropriate for that individual.