ACA: Preventive Care Coverage Requirements


Reference

Section 2713 of the Public Health Service Act (the “Act’), as added by the Affordable Care Act (“ACA”), requires group health plans and health insurance issuers that are not grandfathered health plans to provide a wide array of preventive care items and services with no cost-sharing. This means that no deductibles, copays, coinsurance, or other cost-sharing measures otherwise imposed on plan participants can be imposed for specified in-network preventive care services.

WHAT YOU SHOULD KNOW

Preventive Care Services That Must be Provided Without Cost-Sharing

For plan years beginning on or after September 23, 2010, non-grandfathered group health plans must cover recommended preventive services, as described under specified medical and scientific guidelines, on a first-dollar basis. Additionally, these plans may no longer charge patients a copayment, coinsurance or deductible for these services when they are delivered by a network provider. In addition, any State insurance laws that impose requirements on health insurance issuers that are stricter than those imposed by the ACA will not be superseded by the ACA. Grandfathered plans that later lose that status will need to comply on the first day of the plan year in which they are no longer considered grandfathered. In addition, grandfathered plans that are not required, but voluntarily choose to implement the new preventive care requirements as part of their new plan design may do so without jeopardizing the plan’s grandfathered status.

Recommended Preventive Health Services

Under the new rules, a non-grandfathered plan must provide benefits for and prohibit the imposition of cost-sharing requirements (including copayments, coinsurance or deductibles) with respect to the following items and services obtained from an in-network provider:

Recommended Immunization Schedule for Persons Aged 0 Through 6 Years

Recommended Immunization Schedule for Persons Aged 7 Through 18 Years

Catch-up Immunization Schedule for Persons Aged 4 Months Through 18 Years Who Start Late or Who Are More Than 1 Month Behind

Recommended Adult Immunization Schedule

Reasonable Medical Management Techniques Permitted to Determine Coverage Limitations

If a recommendation or guideline for a preventive service does not specify the frequency, method, treatment, or setting for the provision of that service, the non-grandfathered plans can use reasonable medical management techniques to determine any coverage limitations. Reasonable medical management techniques allow a plan to require that a generic medication (such as generic birth control pills) be used instead of a name brand if the generic alternative has been proven safe and effective.   However, if an individual’s attending provider recommends a particular service or FDA approved item based on a determination of medical necessity with respect to that individual, the plan or issuer must cover that service or item without cost sharing. The plan or issuer must defer to the determination of the attending provider. 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 the case of coverage of tobacco cessation programs, the government has provided the following as a safe harbor:

  1. Screening for tobacco use; and,
  2. For those who use tobacco products, at least two tobacco cessation attempts per year.  For this purpose, covering a cessation attempt includes coverage for:

Changes in Preventive Requirements

From time to time, the Task Force, CDC Advisory Committee, and/or HRSA may change the list of recommended preventive care items and services to which this required coverage is applicable. New recommendations and guidelines must be implemented no later than the first day of the plan year that goes into effect more than  one year after the new recommendation or guideline goes into effect.  If a recommendation or guideline for a preventive service is changed or eliminated in the middle of a plan year, group health plans and insurers must continue to cover the preventive service without cost sharing through the end of the plan year.  However, this does not apply to a recommendation that is downgraded from an “A” or “B” rating to a “D” rating; or is subject to a safety recall;  or is otherwise determined to pose a significant safety concern by an appropriate federal agency.  An online list will be updated as new recommendations are issued.

Preventive Care Services Where Cost-Sharing is Allowed

Out-of-Network Preventive Services

Plans that offer coverage through a network of providers may impose cost-sharing for preventive services included in the recommendations if those services are provided out-of-network. In addition, plans are not required to provide any coverage for out-of-network preventive care services.  However, a plan or issuer that does not have in its network a provider who can provide a particular recommended preventive service is required to cover the preventive service when performed by an out-of-network provider, and may not impose cost sharing with respect to the preventive service.

Preventive Services Outside of Those Specifically Recommended

Plans may impose cost-sharing for those preventive services not covered in the recommendations described above. If the Task Force or other agency listed above drops its recommendation for a specific preventive service at some point in the future, plans will no longer be required to provide first-dollar coverage for that service. Please note that certain other legal requirements may apply if a plan or insurer drops or modifies coverage (or cost-sharing requirements) for a formerly listed preventive health service (such as providing a Summary of Material Modifications notice). In addition, eliminating any such benefits could adversely impact a plan’s status as a grandfathered plan under the ACA.

Treatment for Conditions Diagnosed through Preventive Services

A plan may impose cost-sharing requirements for a treatment not required to be provided under these new requirements, even if the treatment results from an item or service that is required to be provided under these new preventive care rules.

Cost-Sharing with Respect to Office Visits and Treatment

The regulations provide guidance regarding situations in which cost-sharing requirements — including copayments, deductibles, and coinsurance — may and may not be imposed for covered preventive health services provided during an office visit.

  1. Cost-Sharing Allowed: Where a covered preventive health service is billed separately — e.g., lab work for a cholesterol screening conducted during an office visit, if the office visit is not, itself, for preventive health services and the lab work is billed separately — the plan or insurer may impose cost-sharing requirements for the office visit, but cannot impose cost-sharing for the preventive health service.
  2. Cost-Sharing Not Allowed: Where a covered preventive health service is not billed separately from an office visit, and the primary purpose for the office visit was to obtain the preventive health service, the plan or insurer may not impose cost-sharing requirements with respect to the office visit.
  3. Cost-Sharing Allowed: Where a covered preventive health service is not billed separately from an office visit, but the preventive health service was not “the primary purpose” for the office visit, then the plan or insurer may impose cost-sharing requirements with respect to the office visit, including the preventive health service.

Women’s Preventive

Women’s preventive services that must be covered by non-grandfathered health plans and health insurance issuers (including issuers in the individual market) without imposing cost sharing requirements include:

1.  Plans and issuers must cover without cost sharing at least one form of contraception in each of the methods (currently 18) that the FDA has identified for women in its current Birth Control Guide. 12 This coverage must also include the clinical services, including patient education and counseling, needed for provision of the contraceptive method.

2.  Within each method, plans and issuers may utilize reasonable medical management techniques. A plan or issuer generally may impose cost sharing (including full cost sharing) on some items and services to encourage an individual to use other specific items and services within the chosen contraceptive method. For example, a plan may discourage use of brand name pharmacy items over generic pharmacy items through the imposition of cost sharing. Similarly, a plan may use cost sharing to encourage use of one of several FDA-approved intrauterine devices (IUDs) with progestin.

3.  If utilizing reasonable medical management techniques within a specified method of contraception, plans and issuers must have an easily accessible, transparent, and sufficiently expedient exceptions process that is not unduly burdensome on the individual or a provider (or other individual acting as a patient’s authorized representative).

4.  Because the Departments’ prior guidance may reasonably have been interpreted in good faith as not requiring coverage without cost sharing of at least one form of contraception in each method identified by the FDA, the Departments will apply this clarifying guidance for plan years beginning on or after the date that is 60 days after publication of these FAQs .

Religious and Moral Objections to Providing Coverage for Contraceptive Services

Religious Objectors

Federal rules permit certain plan sponsors (called eligible organizations) to exempt themselves from providing some or all contraceptive services under their health plans, based on their sincerely held religious beliefs.  Eligible organizations include:

(A)          A church, a convention or association of churches, or a religious order.

(B)          A nonprofit organization.

(C)          A closely held for-profit entity.

(D)         A for-profit entity that is not closely held.

(E)          Any other non-governmental employer.

No particular process is required for an organization to avail itself of the exemption.  However, ERISA would require the lack of availability of such coverage be mentioned in the SPD’s list of exclusions.  In addition, ERISA’s rules on notifications in the case of reduction of coverage would apply if claiming the exemption would cause persons to lose contraceptive coverage previously provided.

Option Accommodation Process

The rules provide for an optional accommodation process.  In the case of a self-insured plan, a third-party administrator will provide or arrange payments for all or a subset of contraceptive services.  The organization must self-certify its religious objections to its TPA, directly or through HHS.  The TPA (if it is willing to do so) must either:

The process is essentially the same for a fully-insured plan. The notice is provided to the issuer; the issuer must expressly exclude the objectionable services from coverage and segregate the premium for the eligible organization from the premium that it uses to pay for contraceptive services.

The TPA or issuer must annually provide written notice to plan participants of the availability of separate payments for contraceptive services contemporaneous with (to the extent possible), but separate from, any application materials distributed in connection with enrollment (or re-enrollment) in group health coverage. The notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the third-party administrator or issuer, as applicable, provides or arranges separate payments for contraceptive services, and must provide contact information for questions and complaints.

Moral Objectors

Federal rules also provide for an exemption for organizations with sincerely-held moral (but not religious) objections to the provision of contraceptive coverage.  These rules apply to not-for profit entities and for-profit entities whose ownership interests are not publicly traded.  In this context, publicly traded refers to any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934.

No particular process is required for an organization to avail itself of the exemption.  However, ERISA would require the lack of availability of such coverage be mentioned in the SPD’s list of exclusions.  In addition, ERISA’s rules on notifications in the case of reduction of coverage would apply if claiming the exemption would cause persons to lose contraceptive coverage previously provided.

The optional accommodation process discussed above with respect to religious objectors is also available to moral objectors.

Finally, the rule permits (but does not require) a willing plan sponsor and/or a willing issuer to offer a separate benefit package or insurance policy to any individual who objects to coverage or payments for some or all contraceptive services based on the individual’s sincerely held moral convictions or religious beliefs. The individual exemption extends to the coverage unit in which the plan participant, is enrolled (for instance, to family coverage covering the participant and his or her beneficiaries enrolled under the plan), but does not relieve the plan’s or issuer’s obligation to comply with the Mandate with respect to the group health plan at large.

Plans Covering Two or More Employers

Any nonprofit organization with religious objections to contraceptive coverage that is part of the same controlled group of corporations or part of the same group of trades or businesses under common control (as defined in the Internal Revenue Code) with a religious employer and/or an Eligible Organization, and that offers coverage through the same group health plan as such religious employer and/or Eligible Organization, is considered to hold itself out as a religious organization and therefore qualifies for an accommodation under the final regulations. However, each such organization must independently satisfy the self-certification standard.

In the case of employers with coverage through a MEWA that included both Eligible and ineligible Organizations, the proposed rule would apply only to the Eligible Organizations.

Similar rules would apply to student health coverage provided by educational institutions that qualify as Eligible Organizations.

Examples

In-Network Examples as provided in Interim Final Rule.

Example 1

Facts
An individual covered by a group health plan visits an in-network health care provider. While visiting the provider, the individual is screened for cholesterol abnormalities, which has in effect a rating of A or B in the current recommendations of the United States Preventive Services Task Force with respect to the individual. The provider bills the plan for an office visit and for the laboratory work of the cholesterol screening test.

Conclusion
In this Example 1, the plan may not impose any cost-sharing requirements with respect to the separately billed laboratory work of the cholesterol screening test. Because the office visit is billed separately from the cholesterol screening test, the plan may impose cost-sharing requirements for the office visit.

Example 2

Facts
Same facts as Example 1. As the result of the screening, the individual is diagnosed with hyperlipidemia and is prescribed a course of treatment that is not included in the recommendations under the regulations.

Conclusion
In this Example 2, because the treatment is not included in the recommendations under the regulations, the plan is not prohibited from imposing cost-sharing requirements with respect to the treatment.

Example 3

Facts
An individual covered by a group health plan visits an in-network health care provider to discuss recurring abdominal pain. During the visit, the individual has a blood pressure screening, which has in effect a rating of A or B in the current recommendations of the United States Preventive Services Task Force with respect to the individual. The provider bills the plan for an office visit.

Conclusion
In this Example 3, the blood pressure screening is provided as part of an office visit for which the primary purpose was not to deliver items or services described in the regulations.  Therefore, the plan may impose a cost-sharing requirement for the office visit charge.

Example 4

Facts
A child covered by a group health plan visits an in-network pediatrician to receive an annual physical exam described as part of the comprehensive guidelines supported by the Health Resources and Services Administration. During the office visit, the child receives additional items and services that are not described in the comprehensive guidelines supported by the Health Resources and Services Administration, nor otherwise described in the regulations. The provider bills the plan for an office visit.

Conclusion
In this Example 4, the service was not billed as a separate charge and was billed as part of an office visit. Moreover, the primary purpose for the visit was to deliver items and services described as part of the comprehensive guidelines supported by the Health Resources and Services Administration. Therefore, the plan may not impose a cost-sharing requirement with respect to the office visit.