On October 23, the U.S. Department of Labor, the Department of Health and Human Services, and the Department of the Treasury (collectively, the “Departments”) jointly issued answers to frequently asked questions regarding the market reform provisions of the Affordable Care Act (“ACA”) and the Mental Health Parity and Addiction Equity Act (“MHPAEA”), as amended by the ACA. The FAQs cover issues related to the coverage of preventive services, BRCA testing, wellness programs, and disclosures under MHPAEA. Below are some highlights from the FAQs.
Coverage of Preventive Services
Under the ACA, non-grandfathered group health plans must cover certain preventive services without imposing any cost-sharing requirements. In the FAQs, the Departments issued the following guidance regarding preventive services:
- Plans must provide a list of the lactation counseling providers within their network.
- Plans may not impose cost-sharing for lactation counseling services obtained outside the network if there are no in-network lactation counseling providers.
- Plans must cover lactation counseling even if the State where the participant lives does not license lactation counseling providers.
- Plans may not impose cost-sharing on lactation counseling that is provided on an outpatient basis.
- Plans are required to cover the cost of breastfeeding equipment without cost-sharing for the duration of breastfeeding and may not impose a shorter time period for obtaining equipment.
- Plans may not contain general exclusions on weight management services for adult obesity.
- Plans may not impose cost-sharing on required consultations prior to colonoscopies that are scheduled and performed as screening procedures.
- Pathology services performed in connection with a preventive colonoscopy must be covered by plans without cost-sharing, including polyp biopsies.
Lastly, the Departments included a reminder that qualifying employers who hold sincere religious objections to covering contraceptive services can use the available religious accommodation by completing EBSA Form 700 or providing a notice of objection to the Department of Health and Human Services.
Coverage of BRCA Testing
The Departments have clarified that genetic counseling and BRCA testing must be provided without cost-sharing to any woman found to have an increased risk through use of screening tools that examine family history associated with an increased risk of potentially harmful gene mutations. For women previously diagnosed with cancer, this requirement applies if the woman is not currently symptomatic or receiving active treatment for breast, ovarian, tubal, or peritoneal cancer.
As discussed in our prior alert, the Departments previously established limits on the value of rewards and penalties that may be provided under health-contingent wellness programs that are part of a group health plan. In the new FAQs, the Departments clarified that wellness programs providing non-financial or in-kind incentives, such as thermoses and sports gear, are subject to the established limits, in addition to the other requirements of the regulations.
Disclosures under MHPAEA
The MHPAEA and underlying regulations generally prohibit group health plans from imposing more restrictions on financial requirements and treatment limitations provided for mental health/substance abuse disorder services than are imposed for medical/surgical services. Under the MHPAEA regulations, which we previously discussed, criteria for medical necessity determinations with respect to mental health/substance abuse disorder benefits must be made available to current or potential participants, beneficiaries, or providers upon request. Additionally, the reason for any denial of services related to mental health/substance abuse disorder benefits must be made available to participants and beneficiaries.
In the FAQs, the Departments answered two questions about disclosures under MHPAEA. First, the criteria for making medical-necessity determinations must be disclosed even if the plan administrator believes that the information is proprietary or has commercial value. This is true even if a third-party administrator is the source of the information. Second, group health plans may (but are not required to) provide a summary description of the applicable medical necessity criteria written to be understandable by a layperson. That said, providing such a summary does not satisfy the requirement to provide the actual underlying criteria.