On October 23, 2015, the Departments of Labor, Health and Human Services and Treasury (the “Agencies”) jointly released their twenty-ninth (XXIX) set of Frequently Asked Questions (FAQs) about Affordable Care Act (ACA) implementation. This latest set of FAQs generally (1) clarify that certain services performed ancillary to various preventive services must also be covered without imposition of cost-sharing, (2) explain that in-kind incentives provided through wellness programs are also subject to limitations under HIPAA and (3) state that medical necessity guidelines related to mental health and substance abuse benefits must be provided to participants upon request. Additional detail is provided below.
The ACA generally requires that non-grandfathered group health plans provide services designated as preventive care without the imposition of cost-sharing. If a group health plan provides a preferred network of service providers, this requirement generally applies only to in-network services. Since the enactment of the ACA, the agencies have released numerous guidelines regarding coverage of preventive services. The new FAQs provide the following additional guidance:
- Lactation Counseling. The new guidance states that group health plans must provide participants with a list of in-network lactation counseling providers. This information can be included in other in-network provider directories. Additionally, the FAQs note that if there are no lactation counseling providers within the preferred network, group health plans must cover without cost-sharing lactation counseling services obtained outside of the network. The Agencies recognized the general rule that prohibits cost-sharing for in-network services only, but explained that this rule is contingent on a particular service being available within the network. Also, if a state does not license lactation counselors, a group health plan must cover counseling services provided by another provider (such as a registered nurse) acting within the scope of his or her license or certification.
Group health plans are not permitted to limit coverage of lactation counseling without cost-sharing to services provided on an inpatient basis. Although plans may apply reasonable medical management techniques, requiring cost-sharing for outpatient (but not inpatient) lactation counseling services is not reasonable. Finally, coverage of breastfeeding equipment cannot be limited to a specific time period following birth. Instead, breastfeeding equipment must be covered with no cost-sharing for the duration of breastfeeding (as long as the covered individual remains enrolled in the plan).
- Obesity. The FAQs state that plans are not permitted to impose general exclusions on weight management services for adult obesity. The US Preventive Services Task Force (USPSTF) has designated screening for adult obesity as a preventive service. In addition to screening, plans must cover with no cost-sharing weight management programs for individuals with certain risk factors.
- Colonoscopy. The USPSTF has designated a colonoscopy as a preventive care service for certain individuals. The FAQs state that a consultation by a specialist prior to a colonoscopy screening must be covered without cost-sharing if the attending provider determines the consultation is medically appropriate. Additionally, the FAQs expand colonoscopy coverage to include post-screening pathology exams. The agencies consider a pathology exam of a polyp biopsy to be an integral part of a colonoscopy, and thus, this type of exam must be covered without cost-sharing beginning 60 days after the publication of the FAQs.
- BRCA Testing. Following-up on previous guidance related to BRCA testing, the FAQs state that women found to be at an increased risk of BRCA mutations using a family history screening tool must receive coverage without cost-sharing of genetic counseling and BRCA mutation testing.
- Religious Exemptions for Contraceptive Coverage. The FAQs provide instructions on how religious organizations can avoid paying for contraceptive coverage.
The new guidance also contains one FAQ regarding wellness programs. As previously reported, the Department of Labor and Equal Employment Opportunity Commission are currently crafting guidelines that will describe, among other things, when a wellness program is a group health plan for purposes of the HIPAA wellness regulations and future EEOC regulations (a description of the HIPAA wellness regulations and the EEOC proposed regulations can be found here and here). In general, the HIPAA wellness regulations provide that certain wellness programs will not be considered discriminatory based on a health factor if the incentives offered under such programs are limited to 30% (50% in the case of tobacco-related program) of the cost of coverage. The EEOC proposed regulations contain similar, though by no means identical, rules.
The newest FAQs clarify that in-kind incentives, such as gift cards, sports gear or other items, must also be considered when determining whether the incentive limitation has been reached. Both the HIPAA wellness regulations and EEOC proposed regulations indicate that the incentive limitations apply only to those wellness programs that are, or are part of, group health plans (note that HIPAA in general only applies to group health plans). Many employers offer wellness programs that do not involve premium discounts, rebates or surcharges to their entire workforce. For example, an employer might offer its employees the opportunity to get a free wearable fitness tracker upon completing a nutrition course or walking program. The prevailing understanding has been that this type of program is not a group health plan and, thus, is not subject to HIPAA or the EEOC proposed regulation’s incentive limitations. Unfortunately, the new FAQs do not address when in-kind incentives are connected to a group health plan. Additional Agency guidance would be helpful.
Mental Health Parity
The Mental Health Parity and Addition Equity Act of 2008 requires that group health plans provide mental health and substance abuse benefits in parity with medical and surgical benefits. Although the requirements are complex (a summary can be found here), the basic structure of the law is that both quantitative limitations (e.g., dollar and visit limits) and nonquantitative limitations (e.g., medical management techniques) applied to mental health and substance abuse benefits must be the same or better than the limitations applied to comparable medical and surgical benefits.
The new FAQs contain clarifying guidance related to disclosure of nonquantitative limitations. In particular, the Agencies stated that the criteria for medical necessity determinations with respect to both mental health and substance abuse benefits and medical and surgical benefits must be provided to current or potential participants or beneficiaries upon request. Plan administrators may not withhold medical necessity criteria on the basis that it is proprietary. However, plan administrators may offer participants a summary document describing the criteria in layperson’s terms. Nevertheless, this summary document cannot substitute for the actual guidelines, so the detailed criteria still must be provided when requested.
Employers and plan administrators should review their group health plan practices and procedures carefully in light of this new guidance.