The Patient Protection and Affordable Care Act (ACA) generally requires group health plans to cover certain preventive care benefits at 100% with no cost-sharing.
These benefits include:
- Evidence-based items or services with a rating of “A” or “B” under recommendations from the United States Preventive Services Task Force (USPSTF) [http://www.uspreventiveservicestaskforce.org/Page/Name/uspstf-a-and-b-recommendations-by-date/];
- Immunizations recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control [http://www.cdc.gov/vaccines/schedules/hcp/index.html];
- Preventive care and screenings for infants, children, and adolescents under Health Resources and Services Administration (HRSA) guidelines [https://www.aap.org/en-us/professional-resources/practice-support/Pages/PeriodicitySchedule.aspx]; and
- Preventive care and screenings for women under HRSA guidelines [http://www.hrsa.gov/womensguidelines/].
PHSA § 2713(a); 29 CFR § 2590.715-2713(a).
Experts from Groom Law Group answer some common questions about these requirements and outline recent guidance that plans should consider for 2016.
How will plans know if there are updates to preventive care services that are required to be covered?
Plans will need to check each of the resources listed above on an annual basis to see if there have been updates to the recommended screenings and immunizations. The USPSTF, in particular, updates its recommendations regularly.
Plans also should watch for updated guidance from the agencies that enforce these requirements – the Departments of Health and Human Services (HHS), Labor (DOL), and Treasury. Updated FAQs can be found at www.dol.gov/ebsa under the heading “Affordable Care Act.”
If there are updates, when are plans required to cover these services?
Where there is an update to a recommendation, coverage must be provided for plan years beginning on or after one year after the date the recommendation is issued. For example, if a recommendation is adopted as of May 1, 2015, it must be covered by a calendar year health plan by January 1, 2017.
Can a health plan place limits on this coverage or must all recommended preventive care be provided at 100%?
Health plans must cover the recommended preventive care at 100% with no cost sharing. However, plans are permitted to place “reasonable medical management” limits on coverage where a recommendation does not specify the frequency, method, treatment, or setting for the provision of that service. For example, the preventive care regulations provide that plans can require that individuals obtain preventive care from a network provider in order for these services to be paid at 100%. With respect to preventive care drugs, HHS, DOL, and Treasury have said that a plan can require individuals to obtain a prescription (such as for aspirin) or that only generic drugs will be covered at 100%.Practical Tip: Note that in order to impose these types of restrictions, the limit must be “reasonable.” New Q&A guidance discussed below indicates that plans may need to make exceptions where the limit is not reasonable for a particular individual. In addition, any limits should be adopted as part of the plan terms and communicated to participants, such as in the SPD.
Other Recent Guidance
Earlier this year, HHS, DOL, and Treasury issued a new set of FAQs with respect to several preventive care provisions, including coverage for women’s services and contraceptives. We have outlined the highlights below. Plans should make sure they review these FAQs and update coverage where needed. ACA FAQs Part XXVI (May 11, 2015) (http://www.dol.gov/ebsa/pdf/faq-aca26.pdf).
FDA-Approved Contraceptives – 18 Categories
Plans already are required to cover all FDA-approved contraceptive methods for women with reproductive capacity, as prescribed by their health care provider, at 100% without cost-sharing.
The new FAQs clarify that plans must cover the full range of FDA-approved methods, with at least one form of contraception in the following 18 categories: (1) sterilization surgery for women; (2) surgical sterilization implant for women; (3) implantable rod; (4) IUD copper; (5) IUD with progestin; (6) shot/injection; (7) oral contraceptives (combined pill); (8) oral contraceptives (progestin only); (9) oral contraceptives extended/continuous use; (10) patch; (11) vaginal contraceptive ring; (12) diaphragm; (13) sponge; (14) cervical cap; (15) female condom; (16) spermicide; (17) emergency contraception (Plan B/Plan B One Step/Next Choice); and (18) emergency contraception (Ella).
The FAQs also state that for the hormonal contraceptive methods, coverage must include all three oral contraceptive methods (combined, progestin-only, and extended/continuous use), injectable, implants, the vaginal contraceptive ring, the contraceptive patch, emergency contraception (Plan B/Plan B One Step/Next Choice), emergency contraception (Ella), and IUDs with progestin.
(Q&A-2, Q&A-3, Q&A-4)Practical Tip: When reviewing the 2016 plan documents and SPDs, plans should look to the FAQs as a checklist to ensure that they are covering contraceptives at 100% without cost sharing in each of the 18 categories required. Plans may need to make sure their TPAs also are covering contraceptives in these categories.
Reasonable Medical Management Limits: Appeals Process
As noted above, health plans are permitted to apply “reasonable medical management” limits when covering preventive care, such as only covering in-network providers or generic drugs. The FAQs clarify that, as long as at least one method of contraception is covered in the above 18 categories, the plan could impose full cost sharing for other methods in that category in order to steer participants to certain products. The FAQs give examples that a plan may discourage use of brand name pharmacy items over generic pharmacy items by imposing cost sharing on brand name drugs or may use cost sharing to encourage use of a certain product within a category.
However, the FAQs add a requirement that if the plan is applying limits to contraceptive coverage, the plan must have an appeals process (called an “exceptions process”) that is not unduly burdensome to the individual or provider. The FAQs say that the exceptions process must be easily accessible, transparent, and sufficiently expedient.
The FAQs provide that if an individual's attending provider recommends a particular service or FDA-approved item based on a determination of medical necessity, the plan must cover that service or item without cost sharing. In other words, the plan must defer to the determination of the attending provider. The FAQs indicate that medical necessity may include considerations such as severity of side effects, differences in permanence and reversibility of contraceptives, and ability to adhere to the appropriate use of the item or service, as determined by the attending provider.
In addition, plans must treat a request for an exception as a “claim” under the plan’s claims procedures and apply the same timeframes (including urgent, pre-service and post-service timeframes, as applicable).
(Q&A-2, Q&A-3)Practical Tip: If a participant requests an exception to the plan’s limits on contraception coverage, the plan should treat this type of request as a “claim” under its otherwise applicable claims procedures. Since many plans have TPAs that handle everyday claims, plans may need to decide who will handle these requests and who will handle any appeals.
Well-Woman Preventive Care for Dependents
The FAQs clarify that plans must cover well-woman preventive services at 100% for dependent children, as well as a covered employee or spouse, where an attending provider determines that these services are age and developmentally appropriate for the dependent.
Practical Tip: Plans should ensure that they cover well-women visits for any covered individual where an attending provider determines appropriate, including dependents. This includes preventive services related to pregnancy, such as prenatal care.
Genetic Testing for Breast Cancer
An earlier recommendation required that plans cover genetic counseling and BRCA genetic testing at 100% for certain women who have family members who have had breast, ovarian, tubal, or peritoneal cancer. The FAQs clarify that, in some cases, a plan also must cover genetic counseling and BRCA genetic testing for an at-risk woman who has had breast cancer or ovarian cancer, even if a family member has not had cancer and even if the woman currently is asymptomatic and cancer-free.
(Q&A-1)Practical Tip: Plans should ensure they are covering BRCA testing for an “at-risk” woman who has a prior history of breast or ovarian cancer, even if a family member has not had cancer. For example, a women who is diagnosed at an early age may be considered “at risk” for certain genetic mutations, even if a family member has not had cancer, making her eligible for genetic counseling or testing.
Preventive Services for Transgendered Individuals
Plans are required to cover certain gender-based preventive care screenings, such as those provided during a well-woman visit. The FAQs clarify that plans must provide coverage for gender-based preventive services regardless of sex assigned at birth, gender identity, or gender of the individual otherwise recorded by the plan, where an attending provider determines that a recommended preventive service is medically appropriate.
Practical Tip: When administering gender-based preventive care benefits, plans should base coverage on the recommendations of the individual’s attending physician, rather than an individual’s gender identity or gender at birth. For example, a plan may need to cover a mammogram for a transgendered man who has residual breast tissue.
Anesthesia During Colonoscopy
The USPSTF recommendations include coverage for preventive colonoscopy in certain cases. The FAQs provide that a plan may not impose cost sharing with respect to anesthesia services performed in connection with a preventive colonoscopy if the attending provider determines that anesthesia would be medically appropriate for the individual.
Practical Tip: When administered as part of a preventive colonoscopy, plans may need to cover anesthesia as a preventive care benefit – that is, at 100% with no cost sharing – rather than a hospital or outpatient surgery benefit.
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The FAQs related to contraceptive coverage apply to plan years starting 60 days after publication of the FAQ (January 1, 2016 for calendar year plans). It appears that the rest of the guidance was intended to apply immediately. Plans should review the updated list of recommended preventive services and recent agency guidance to ensure they are ready for 2016.
Addendum: After this article was submitted, the agencies issued additional FAQs on lactation counseling for women, weight management services, colonoscopies, and BRCA testing. See ACA FAQs Part XXIX (October 23, 2015) (http://www.dol.gov/ebsa/faqs/faq-aca29.html).
Christy Tinnes is a Principal in the Health & Welfare Group of Groom Law Group in Washington, D.C. She is involved in all aspects of health and welfare plans, including ERISA, HIPAA portability, HIPAA privacy, COBRA, and Medicare. She represents employers designing health plans as well as insurers designing new products. Most recently, she has been extensively involved in the insurance market reform and employer mandate provisions of the health-care reform legislation.
Brigen Winters is a Principal at Groom Law Group, Chartered, where he co-chairs the firm's Policy and Legislation group. He counsels plan sponsors, insurers, and other financial institutions regarding health and welfare, executive compensation, and tax-qualified arrangements, and advises clients on legislative and regulatory matters, with a particular focus on the recently enacted health-reform legislation.
PLEASE NOTE: This feature is intended to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice.
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