Federal agencies have released Frequently Asked Questions (FAQs Part XXIX) on the market reform provisions of the Affordable Care Act (ACA), as well as on the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (collectively referred to as the departments) jointly released the FAQs, which address preventive services, including lactation benefits, colonoscopies, obesity and BRCA testing for breast cancer. The FAQs also provide guidance on nonfinancial rewards in wellness programs and disclosure requirements for medical necessity criteria under the MHPAEA.
Most of the FAQs do not specify an effective date, which suggests that group health plans should be complying now. According to the departments, however, because earlier guidance might have been reasonably interpreted as not requiring certain coverage, these FAQs will be applied for plan years beginning on or after December 22, 2015, for the two provisions that require coverage without cost sharing for:
- A specialist consultation before a colonoscopy screening procedure
- A pathology exam on a polyp biopsy performed in connection with a colonoscopy screening procedure
Under the ACA, non-grandfathered group health plans and health insurance coverage offered in the individual or group market must provide the following preventive care benefits without cost sharing:
- Evidenced-based items or services with an A or B rating (or the equivalent) from the U.S. Preventive Services Task Force (USPSTF), except for recommendations for breast cancer screening, mammography and prevention issued in or around November 2009
- Routine immunizations for children, adolescents and adults that are recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention
- Evidence-informed preventive care and screenings for infants, children and adolescents provided for in guidelines supported by the Health Resources and Services Administration (HRSA)
- Evidence-informed preventive care and screenings for women as provided for in guidelines supported by HRSA to the extent not included in certain recommendations of the USPSTF
If a recommendation or guideline does not specify the frequency, method, treatment or setting for a recommended preventive service, plans may use reasonable medical management techniques to determine coverage.
Plans must provide a list of lactation counseling providers in their network. While the guidelines do not set out specific disclosures, other laws require that the availability of lactation counseling be listed in plan disclosures, such as the summary of benefits and coverage (SBC) and summary plan description (SPD). Group health plan networks must either include lactation counseling providers or provide out-of-network coverage without cost sharing for those providers.
Plans may not restrict coverage for lactation counselling to providers licensed by the state. Subject to reasonable medical management, plans must cover lactation counseling without cost sharing as performed by providers acting within the scope of their license or certification under applicable state law. Providers may include other professionals, such as registered nurses. Coverage without cost sharing may not be restricted to inpatient services, and plans must cover lactation support services without cost sharing for the entire breastfeeding period.
Group health plans must allow mothers to rent or buy breastfeeding equipment with no cost sharing for the entire breastfeeding period.
Group health plans may not exclude weight management services for adult obesity. Plans must provide certain screenings without cost sharing to obese adults (following USPSTF recommendations). However, plans may use reasonable medical management techniques to determine the frequency, method, treatment or setting for a recommended preventive service, to the extent not specified in the associated recommendation or guideline.
Plans may not impose cost sharing for a required specialist consultation before a preventive screening colonoscopy if the attending provider deems the consultation medically appropriate. The departments consider the pre-procedure consultation as an integral part of the colonoscopy.
After a screening colonoscopy, the plan must cover any pathology exam on a polyp biopsy without cost sharing. The departments also view such services as an integral part of a colonoscopy.
Qualifying nonprofits and closely held for-profit sponsors of ERISA self-insured plans1 with a sincerely held religious objection to covering contraceptive services may claim a religious accommodation using one of two methods:
- Complete and submit Employee Benefits Security Administration (EBSA) Form 700 to the plan’s third-party administrator. Doing so will relieve the employer from any obligation to contract, arrange or pay for the contraceptive services to which it objects. The submission has the legal effect of designating the third-party administrator as the ERISA plan administrator responsible for separately providing payments for the contraceptive services.
- Provide appropriate notice of the religious objection to HHS (the Centers for Medicare & Medicaid Services provides a model notice). HHS will forward the information to the DOL, which will designate the third-party administrator as the ERISA plan administrator responsible for separately providing coverage for the contraceptive services at issue. The notice will relieve the employer from any obligation to contract, arrange, pay or refer to the contraceptive services.
The USPSTF recommends (with a “B” rating) screening “women who have family members with breast, ovarian, tubal or peritoneal cancer with one of several screening tools designed to identify a family history that may be associated with an increased risk for potentially harmful mutations in breast cancer susceptibility genes (BRCA 1 or BRCA 2).”
An earlier FAQ clarified that women with positive screening results should receive both genetic counseling and BRCA testing if their health care provider recommends the services. A follow-up FAQ addressed services for women who previously had breast cancer, ovarian cancer or other cancer. According to this new FAQ, women found to be at increased risk by a tool screening for a family history that may suggest higher risk of a potentially harmful gene mutation must receive coverage without cost sharing for genetic counseling and, if indicated, testing for harmful BRCA mutations. It does not matter whether the woman has previously been diagnosed with cancer, as long as she is not currently symptomatic of or receiving treatment for breast, ovarian, tubal or peritoneal cancer.
Group health plans that provide rewards in the form of nonfinancial (or in-kind) incentives, such as gift cards or sports gear, to participants in health-contingent wellness programs are subject to the wellness program regulations. This is because the reward is based on satisfying a standard that relates to a health factor.
MHPAEA and disclosure
Under the MHPAEA, plans may not impose more restrictive financial requirements, quantitative treatment limits or nonquantitative treatment limits on mental health and substance use disorder (MH/SUD) benefits than those for substantially all medical/surgical benefits.2 The MHPAEA final regulations require certain disclosures — including the criteria for medical necessity determinations — to current or potential participants, beneficiaries or contracting providers upon request. The reason for any denial of reimbursement or payment for services must also be made available to participants and beneficiaries. ERISA’s general disclosure obligations also apply.
The new FAQs provide the following clarifications:
- Plans must disclose the criteria for medical necessity determinations, as well as any processes, strategies, evidentiary standards or other factors used in developing the underlying nonquantitative treatment limits. Plans also must disclose material related to MH/SUD benefits and medical/surgical benefits regardless of assertions as to the proprietary nature or commercial value of the information.
- A plan may optionally provide a summary description of the medical necessity criteria for both MH/SUD benefits and medical/surgical benefits that is written to be understandable to a layperson, but this will not substitute for the actual medical necessity criteria.
Employers are encouraged to review their group health plans to ensure that coverage is being provided at no cost to participants for the full range of preventive services described in the new FAQs, as well as in previous recommendations. Wellness programs that offer nonfinancial (or in-kind) incentives must meet requirements under the wellness program regulations. Employers must be prepared to disclose medical necessity criteria for both MH/SUD and medical/surgical benefits.