On October 23, 2015, the U.S. Departments of Labor (DOL), Health and Human Services (HHS), and Treasury issued frequently asked questions (FAQs) on the implementation of preventive care and wellness provisions of the Affordable Care Act (ACA) and mental health parity disclosure, adding to the existing list of 28 previous editions of FAQs on the implementation of ACA.
Section 2713 of the ACA requires non-grandfathered group health plans and health insurance offered in individual or group markets to cover preventive care without cost sharing, including 1) evidence-based services with a rating of “A” or “B” in the current recommendations of the U.S. Preventive Services Task Force (USPSTF); 2) immunizations for routine use in children, adolescents and adults that are recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC); 3) evidence-informed preventive care and screenings for infants, children and adolescents from comprehensive guidelines supported by the Health Resources and Services Administration (HRSA); and 4) evidence-informed preventive care and screening for women from comprehensive guidelines supported by HRSA, if not included in certain recommendations of the USPSTF.
In addition, under Code Section 9802 of the Internal Revenue Code, group health plans and health insurance issuers in individual or group markets are prohibited from discriminating against individuals when establishing eligibility, benefits or premiums based on a health factor. However, group health plans and issuers in individual or group markets may allow premium discounts, rebates or modification of cost sharing for participation in wellness programs. Finally, the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) amended the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code to increase parity between mental health and substance use disorder (MH/SUD) benefits and medical/surgical benefits.
The most recent government FAQs address the following issues:
- Coverage of preventive services
- Religious accommodation
- Wellness programs
- MHPAEA and disclosure
Coverage of Preventive Services
- Plans and issuers are required to provide a list of in-network lactation counseling providers and include in the summary of benefits and coverage (SBC) information for obtaining such a list. Group health plans subject to ERISA may provide a list of network providers in a separate document accompanying the summary plan description (SPD), as long as the SPD describes the provider network and states that provider lists are furnished automatically and without charge. Issuers of qualified health plans in individual market exchanges and small business health options programs (SHOPs) must make provider directories available online.
- If a plan or issuer does not include lactation counseling providers in-network, it must cover, without cost sharing, services by an out-of-network provider.
- Plans and issuers are required to cover, without cost sharing, lactation counseling when it is performed on an in-patient or out-patient basis by a provider acting within the scope of his or her license or certification under applicable state law.
Other Preventive Services
- Plans and issuers must cover, without cost sharing, the rental or purchase of breastfeeding equipment for the duration of breastfeeding, if the individual remains continuously enrolled in the plan or coverage.
- Non-grandfathered plans and issuers are required to cover, without cost sharing, screening for obesity in adults and may not generally exclude weight management services for adult obesity.
- Plans and issuers must cover, without cost sharing, a required specialist consultation prior to a screening colonoscopy, as well as any pathology exam on a polyp biopsy performed in connection with a preventive colonoscopy.
- Plans and issuers are required to cover, without cost sharing, genetic counseling and, if indicated, testing for harmful mutations in breast cancer susceptibility genes (BRCA 1 or BRCA 2) for women found to be at an increased risk of genetic mutations.
- The FAQs clarified the two methods to effectuate the religious accommodation for qualifying nonprofit or closely held for-profit employers who sponsor an ERISA-covered self-insured plan and who have a sincerely held religious objection to covering contraceptive services.
- Employers may complete EBSA Form 700 and provide it to the plan’s third-party administrator, relieving the employer from any obligation to contract, arrange, pay or refer for contraceptive services to which it objects.
- Or, employers may provide appropriate notice of the objection to HHS. Employers can use the model notice available here. HHS will forward the information to DOL, which will notify the third-party administrator and designate it as the ERISA plan administrator responsible for separately providing coverage for contraceptive services to which the employer objects.
- In-kind incentives (e.g., gift cards, thermoses and sports gear) that a group health plan provides to participants who adhere to a wellness program are subject to wellness program regulations issued by the departments.
MHPAEA and Disclosure
- Plan administrators may not deny requests for medical necessity criteria for both medical/surgical and MH/SUD benefits (including anorexia)—as well as any information regarding the processes, strategies, evidentiary standards or other factors used in developing medical necessity criteria and applying them—on the basis that the information is “proprietary” and/or has “commercial value.”
- Plans and issuers are not required to do so but may provide a document that describes the medical necessity criteria in layperson’s terms; however, providing this summary document is not a substitute for providing the actual underlying medical necessity criteria, if such criteria are requested.
Employers should review the design of their health plan and disclosure documents to ensure that they comply with the requirements outlined above. Employers should also coordinate with their service providers who may assist in preparing these disclosures to ensure this information is being included in the documents provided to participants.
Sarah Raaii, an associate in the Chicago office, also contributed to this newsletter.