Specifically, the Departments of Health and Human Services (“HHS”), Labor (“DOL”), and Treasury jointly published “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act” (the “Rule”). 75 Fed. Reg. 41726 (July 19, 2010).
The rule, effective on September 17, 2010, generally applies for plan years beginning on or after September 23, 2010, with comments on the rule due by September 17, 2010.
This week’s column takes a closer look at the rule.
What does the preventive health services provision require?
The provision in PPACA and the guidance in the Rule require group health plans and health insurers to cover certain preventive health services and to eliminate cost-sharing requirements for such services. These requirements do not apply to grandfathered plans.
How does the Rule define preventive health services for these purposes?
The Rule generally tracks the statutory language regarding the definition of preventive
health services subject to the coverage and no cost-sharing requirements. The Preamble, which refers to the covered services as recommended preventive services, includes a chart with the list of those services subject to the new rules as of July 13, 2010. The Preamble also includes a link to the list of recommended preventive services on the Federal government’s healthcare.gov website: http://www.healthcare.gov/center/regulations/prevention/recommendations.html. Among other things, this website contains the current list of Grade A and Grade B recommendations for preventative services made by the United States Preventive Services Task Force (“USPSTF”). One difficulty with the list is that it is unclear in some of the USPSTF recommendations as to exactly what is required to be covered without cost-sharing. It is unclear at this time whether the agencies will issue further guidance to address questions regarding the listed services.
When a new recommendation on recommended preventive services is issued, when do the requirements apply with respect to that recommendation?
The Rule provides that a plan must provide required coverage for recommended preventive services without cost-sharing for plan years beginning on or after September 23, 2010, or, if later, for plan years beginning on or after the date that is one year after the applicable recommendation or guideline is issued. For calendar year plans, this means that for the 2011 plan year, coverage must be provided for recommended preventive services addressed in recommendations or guidelines issued prior to January 1, 2010.
Do the coverage and cost-sharing requirements apply with respect to services provided out-of-network?
PPACA does not specify whether plan sponsors are required to cover recommended preventive services provided by out-of-network providers, or whether plan sponsors could impose cost-sharing requirements on any such out-of-network services. The Rule clarifies that in the case of a plan or insurer that has a network of providers, the plan or insurer is not required to provide coverage for recommended preventive services delivered by an out-of-network provider, and may impose cost-sharing requirements for recommended preventive services delivered by an out-of-network provider. The Rule also clarifies how the cost-sharing rules apply in the case of a recommended preventive services provided during an office visit.
Does the Rule allow plans to use medical management techniques to determine the frequency of services?
The Rule provides that a plan or insurer may use “reasonable medical management techniques” to determine the frequency, method, treatment, or setting for a recommended preventive service to the extent such information is not specified in the applicable recommendation or guideline. The Preamble to the Rule notes that a plan or insurer may use reasonable medical management techniques in those circumstances to determine any coverage limitations, and to adapt the relevant recommendations and guidelines to the coverage of specific items and services for which cost-sharing is not permitted. But, as noted above, it is not always clear the extent to which the recommendation — and the agency’s explanation of the recommendation and any related “clinical considerations” underlying the recommendation — address the scope or frequency of items that are required to be covered.
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You can find a handy list of Key Provisions of the Patient Protection and Affordable Care Act and their effective dates at http://www.groom.com/HCR-Chart.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.