The U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the U.S. Department of Treasury, recently issued FAQs concerning the implementation of the Affordable Care Act (ACA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), after the decision in Braidwood Management v. Becerra, which invalidated portions of the ACA.
Coverage of Preventive Services
Public Health Service (PHS) Act section 2713 and its implementing regulations require that non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage cover specific preventive services with no cost-sharing requirements. The Braidwood decision changed which preventive services those plans and issuers must cover. As a result, plans and issuers must continue to cover, without cost sharing, items and services recommended with an “A” or “B” rating by the United States Preventive Services Task Force (USPSTF) before March 23, 2010. Braidwood prevents the Departments from implementing and enforcing the requirement that plans and issuers cover items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, without cost sharing. The Departments encourage plans and issuers to continue to cover these items and services without cost sharing.
Braidwood also does not impact the duty of plans and issuers to provide immunizations recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC) without cost sharing, including contraception. It also does not affect the preventive care and screenings outlined in the Health Resources and Services Administration (HRSA) guidelines, which include contraceptive care, cervical cancer screenings, breastfeeding supplies and services, and pediatric preventive care. Some of these services overlap with those that USPSTF recommended with an “A” or “B” rating on or after March 23, 2010.
States may enact laws that require the provision without cost sharing of the items and services at issue in Braidwood. Plans and issuers are not required to change their coverage or cost-sharing, although they may be unable to do so, at least immediately, under their legal and contractual obligations. Should plans and issuers choose to make these changes, they must comply with applicable notice requirements, including those under ERISA.
High Deductible Health Plans and Safe Harbor for Preventive Care
A high deductible health plan (HDHP) generally will cease to be an HDHP if it provides benefits for any year before the participant has satisfied their minimum deductible. Under Code section 223(c)(2)(C), a plan still qualifies as an HDHP if it provides preventive care benefits with no deductible or with a deductible that is below the minimum annual deductible. Subsequent notices include a list of covered preventive care services and an acknowledgment that preventive care services provided without cost-sharing do not disqualify the plan as an HDHP. Even in light of Braidwood, an HDHP may continue to provide coverage for items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, as preventive care.
Rapid Coverage of Preventive Services and Vaccines for Coronavirus
Federal Employees Health Benefits Program
Braidwood does not change the requirement that plans and issuers provide coverage without cost sharing for ACIP-recommended immunizations. Plans and issuers must continue to provide qualifying coronavirus preventive services, including providing and administering COVID-19 vaccines.
Federal Employees Health Benefits Program
The Office of Personnel Management (OPM) required the inclusion of preventive services in federal employee benefit plans before the passage of the ACA. As a result, OPM will continue to require coverage without cost sharing of items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010.
