November 4, 2015
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:
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:
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:
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.
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:
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.