This is the 54th in a series of WorkCite articles concerning the Patient Protection and Affordable Care Act and its companion statute, the Health Care and Education Reconciliation Act of 2010 (referred to collectively as the ACA). This article discusses recent frequently asked questions (FAQs) jointly issued by the Department of Labor (DOL), the Department of Health and Human Services (HHS) and the Department of the Treasury concerning coverage of preventive services; wellness program rewards; and disclosure requirements under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, as amended by the ACA (MHPAEA).
Coverage of Preventive Services
The ACA added Section 2713 to the Public Health Service Act (PHSA) to require that non-grandfathered group health plans, as well as health insurance offered in the individual or group market, provide coverage with no cost-sharing requirements (such as copayments, deductibles or co-insurance) for certain preventive services. As used in this article, “plan” means both a non-grandfathered group health plan and a health-insurance issuer.
A preventive service includes the following four broad categories of service:
- Evidence-based screenings and counseling
- Routine immunizations
- Certain preventive services for children and youth
- Certain preventive services for women
For cases where Section 2713 and its implementing regulations do not expressly require a certain frequency, method, treatment or setting for the provision of a recommended preventive service, the PHSA allows plans to use reasonable medical management techniques to determine any such coverage limitations.
The FAQs regarding preventive services discuss coverage of lactation counseling, breastfeeding equipment, weight management services, colonoscopy procedures, religious objections to providing coverage of contraceptive services, and BRCA testing.
Lactation Counseling and Breastfeeding Equipment
The guidelines provided by the Health Resources and Services Administration (HRSA) provide for coverage of comprehensive prenatal and postnatal lactation support, counseling and equipment rental as part of their preventive service recommendations for women and infants. According to the FAQs:
- Although Section 2713 does not expressly require the disclosure of the specific lactation counseling providers available to an individual within the plan’s network, provisions of other applicable law do require plans to disclose this information. Generally speaking, a plan’s summary of benefits and coverage and/or summary plan description must describe the provider network and/or provide access to a list of network providers.
- If a plan has a lactation counseling provider in its network, it is not required to cover out-of-network lactation counseling services provided. On the other hand, if a plan does not have a lactation counseling provider in its network, a plan must cover items or services provided by an out-of-network lactation counseling provider and may not impose cost-sharing with respect to such items or services.
- If an individual lives in a state that does not separately license lactation counseling providers, a plan still must cover lactation counseling services, without cost-sharing, when they are performed by any provider acting within the scope of his or her license or certification under applicable state law.
- The lactation counseling that is covered, without cost-sharing, may not be limited to inpatient services. It is not a reasonable medical management technique to limit coverage to inpatient services because not all births are associated with hospital admission and often, even for births that are associated with hospital admission, lactation support services continue after an individual has left the hospital.
- A plan must cover the rental or purchase of breastfeeding equipment without cost-sharing for the entire duration of breastfeeding, so long as an individual remains continuously enrolled in the plan.
Weight Management Services
Consistent with Section 2713 and its implementing regulations, a plan must cover, without cost-sharing, screening for obesity in adults. In addition, the United States Preventive Services Task Force (USPSTF) recommends intensive, multicomponent behavioral interventions (i.e., group and individual sessions, improving diet or nutrition, increasing physical activity and self-monitoring and strategizing) for patients meeting a threshold body mass index of 30 kg/m2 or higher. The FAQs provide that excluding weight management services for adult obesity would be imposing a general exclusion that encompasses these preventive services and, as such, is not permissible.
Colonoscopy Procedures
The USPSTF recommends colonoscopies be performed for some individuals as a screening procedure. The FAQs indicate the following:
- If the attending provider determines that it is medically appropriate to require a pre-procedure consultation in addition to the colonoscopy procedure, the plan may not impose any cost-sharing with respect to this required consultation.
- In addition to covering the pre-procedure consultation and the colonoscopy, plans also must cover any resulting pathology exam or polyp biopsy without cost-sharing.
- Because prior guidance issued may have been interpreted as not requiring coverage of a required, pre-procedure consultation or a pathology exam or polyp biopsy performed in connection with a colonoscopy screening procedure without cost-sharing, the above guidance is applicable only to plan years beginning on or after 60 days from the publication of the FAQs, i.e., on or after December 22, 2015.
Effectuating a Religious Objection to Providing Coverage for Contraceptive Services
The FAQs provide that if a qualifying nonprofit or closely held for-profit employer who sponsors an ERISA-covered self-insured plan has a sincerely held religious objection to providing coverage of contraceptive services, there are two alternative methods to effectuate a religious accommodation and relieve the plan from the obligation to provide for such coverage.
- The first method is to complete the Employee Benefits Security Administration Form 700 (accessible on the DOL web page) and provide it to the plan’s third-party administrator (TPA). The Form 700 will be considered a plan instrument that has the effect of designating the TPA as the ERISA plan administrator responsible for separately providing payments for any contraceptive services to which the plan sponsor objects and relieving the plan from the obligation to provide for such coverage.
- Alternatively, the plan may provide appropriate notice of the objection to HHS (a model notice is available on the Centers for Medicare and Medicaid Services web page). In this case, the notice to HHS will be considered a plan instrument that has the effect of relieving the plan from the obligation to provide for such coverage. HHS will then forward the information to the DOL, which will send a notification to the TPA designating it as the ERISA plan administrator responsible for separately providing payments for any contraceptive services to which the plan sponsor objects. The notice from the DOL to the TPA will be viewed as a separate plan instrument that has the effect of designating the TPA as the ERISA plan administrator responsible for separately providing payments for any contraceptive services to which the plan sponsor objects.
Coverage for BRCA Testing and Genetic Counseling
The USPSTF recommends screening for women who have family members with certain types of cancer, by use of a screening tool, to identify a family history that may be associated with an increased risk for potentially harmful mutations in certain breast cancer susceptibility genes (BRCA 1 and BRCA 2). According to the FAQs, a plan must cover genetic counseling and, if indicated, testing for harmful BRCA mutations without cost-sharing for women found by this screening tool to be at increased risk for certain types of cancer. This requirement is applicable as long as the woman is not currently symptomatic of or receiving treatment for breast, ovarian, tubal or peritoneal cancer regardless of whether she has previously been diagnosed with cancer.
Wellness Programs
Under various statutes, generally speaking, plans are prohibited from discriminating against an individual when establishing eligibility, benefits or premiums based on a health factor. There is an exception to this general rule allowing for premium discounts, rebates or modification of cost-sharing in return for adherence to certain programs designed to promote health and prevent disease (wellness programs) as to group health coverage only. This exception does not apply to individual market coverage.
For a program to qualify under this exception, any potential reward under that program must be at or below certain maximums. The FAQs provide that rewards in the form of nonfinancial or in-kind incentives (e.g., gift cards, thermoses and sports gear) to individuals who adhere to a wellness program must be included as a reward when determining if a wellness program satisfies the applicable requirements.
Disclosures Relating to Mental Health and Substance Use Disorders
The MHPAEA generally requires that the financial requirements and treatment limitations imposed on mental health and substance use disorder (MH/SUD) benefits cannot be more restrictive than those applied to substantially all medical/surgical benefits. In addition, MHPAEA requires that a plan make certain information available to individuals, such as the criteria for medical-necessity determinations and the reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits.
As to the information that must be disclosed, the FAQs state the following:
- Upon request, a plan must provide an individual with the criteria for making medical-necessity determinations, as well as any processes, strategies, evidentiary standards or other factors used in developing the underlying nonquantitative treatment limitations and applying it with respect to both MH/SUD and medical/surgical benefits. This information must be provided regardless of any claims as to the proprietary nature or commercial value of the information.
- A plan also may provide a summary of the medical necessity criteria in layperson’s terms, but this is not required. However, providing such a summary document does not relieve the plan of the obligation to provide actual underlying medical necessity criteria if it is requested.
For further information, please contact either of the authors of this article, Allison P. Tanner and Robert M. Cipolla, or any other member of the McGuireWoods employee benefits team.