In October, the Department of Labor, the Department of Health and Human Services and the IRS jointly issued an important round of FAQs. The agencies addressed a wide variety of preventive services required under the Affordable Care Act to be provided without cost-sharing by nongrandfathered, nonexcepted group health plans. The FAQs also impart new information regarding wellness programs and mental health parity. Let’s look at some highlights.
Women’s health issues
In discussing preventive services, the FAQs focus on a number of women’s health issues:
Lactation counseling and breastfeeding equipment. The agencies reiterate, based on previous guidance, that a plan must cover out-of-network lactation counseling as a preventive service without cost-sharing if the plan doesn’t have a provider in its network. The FAQs explain that a plan must cover (without cost-sharing) lactation counseling services from any providers acting within the scope of their state licenses or certifications (for example, registered nurses).
In addition, the agencies warn that coverage for lactation counseling without cost-sharing cannot be limited to inpatient services and that coverage for breastfeeding equipment without cost-sharing generally cannot be restricted to a specific time period after delivery. The FAQs also elaborate on the requirement to make a list of in-network lactation counseling providers available to participants.
Breast Cancer Susceptibility Gene (BRCA) screening, genetic counseling and testing. Noting that previous guidance on preventive services has addressed BRCA-related issues, the agencies clarify that genetic counseling and, if indicated, testing for harmful BRCA mutations must be available without cost-sharing to a woman who has been screened and found to be at increased risk of having a potential harmful gene mutation. This requirement holds true even if a woman has previously been diagnosed with cancer, so long as she is “not currently symptomatic of or receiving active treatment for breast, ovarian, tubal, or peritoneal cancer.”
Religious accommodation to the contraceptive coverage mandate. The FAQs explain in detail the two methods available for qualifying nonprofit or closely held for-profit employers to seek such accommodation.
Other preventive services
The agencies discuss other preventive services, too. For example, they advise that plans cannot contain a general exclusion for weight management services for adult obesity. As the FAQs explain, plans are required to cover screening for obesity in adults and specific behavioral interventions listed in the U.S. Preventive Services Task Force recommendations for adults based on body mass index. This coverage must be provided as preventive services without cost-sharing.
Additionally, the agencies followed up on previous guidance about colonoscopies performed as preventive screening procedures. The FAQs clarify that plans may not impose cost-sharing for required pre-procedure consultations or for pathology exams on polyp biopsies. This guidance will apply as of January 1, 2016, for calendar-year plans.
Under wellness program regulations jointly issued by the same agencies in 2013, wellness “rewards” include financial and nonfinancial incentives and disincentives. The FAQs point out that in-kind wellness program rewards provided by a group health plan based on satisfaction of a standard related to a health factor are subject to these regulations. This includes the provisions of the regulations setting the maximum permissible reward under a health-contingent wellness program. Examples of applicable rewards include gift cards and sports gear.
Mental health parity
The agencies build on earlier guidance indicating that information relevant to a participant’s claim for benefits includes documents on medical necessity criteria for both medical/surgical and mental health / substance use disorder benefits. Pertinent data also includes the processes, strategies, evidentiary standards and other factors used to apply treatment limitations.
In the context of treatment for anorexia characterized as a mental health benefit, the FAQs explain that the required disclosures must be made regardless of any assertions that the information is “proprietary” or has “commercial value.” The agencies note that group health plans may, but aren’t required to, provide a summary description of the medical necessity criteria in layperson’s terms. Such a document, however, isn’t a substitute for the actual underlying medical necessity criteria, if requested.
Ultimately, the FAQs provide answers to a mix of specific questions based on focused facts and general questions with broader applicability. Study them carefully in consultation with your benefits advisor and determine which points are relevant to your plan.
Sidebar: Wait, there’s more: IRS and HHS issue PCORI info
Along with being two of the agencies involved in the recent release of FAQs related to the Affordable Care Act (see main article), the Department of Health and Human Services (HHS) and the IRS have issued even more information of interest to employers. Specifically, in October, the agencies published new information on the ACA’s required fees for the Patient-Centered Outcomes Research Institute (PCORI).
Fees for the PCORI are used to fund research on patient-centered outcomes and apply to plan and policy years ending after October 1, 2012, and before October 1, 2019. For insured plans, the insurer is responsible for paying PCORI fees. For self-insured plans, PCORI fees are imposed on the plan sponsor and generally cannot be paid from ERISA plan assets.
IRS Notice 2015-60 announces that the adjusted applicable dollar amount for PCORI fees for plan and policy years ending on or after October 1, 2015, and before October 1, 2016, is $2.17. This is a $0.09 increase from the amount in effect for plan and policy years ending on or after October 1, 2014, and before October 1, 2015. PCORI fees are calculated by multiplying the applicable dollar amount for the year by the average number of covered lives.