The Internal Revenue Service (IRS), US Department of Labor (DOL) and the Department of Health and Human Services (HHS), the three agencies responsible for policing everyone’s two favorite laws, the Affordable Care Act (ACA) and the federal mental health parity law, have issued yet another set of FAQs to address compliance-related issues associated with these laws. The new FAQs, 13 in all, address issues related to required preventive care for non-grandfathered plans, wellness programs and mental health parity. For students of history, this is the twenty-ninth installment of FAQ guidance from the agencies.
Under the ACA, health-contingent wellness programs offered as part of employer health plans can apply rewards (or penalties) up to 30 percent of the total cost of coverage under the plan (or 50 percent for wellness programs designed to prevent or reduce tobacco use).
According to the new FAQs, in-kind awards (such as gift certificates) and non-financial incentives (for example, fitness gear) provided by a health plan must be included when determining whether the total award (or penalty) is within the permissible threshold. For example, if a plan provides a $1,000 premium credit for non-smokers, but also provides a $200 gift card, the total reward is considered to be $1,200.
Lockton comment: Gift certificates and other cash equivalents also raise issues under federal tax law. While trinkets, such as water bottles, towels and the like, may qualify as tax-free fringe benefits, the IRS rules treat gift certificates as taxable. But to date, the IRS has not rigorously enforced these rules.
The ACA requires non-grandfathered medical plans to provide first dollar preventive care benefits (network plans can require that the care be received in network). The required benefits include all of the following:
- Evidenced-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (USPSTF)
- Immunizations for routine use in children, adolescents and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC)
- With respect to infants, children and adolescents, evidence-based preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA)
- With respect to women, evidence-based preventive care and screening provided for in comprehensive guidelines supported by HRSA, to the extent not included in certain recommendations of the USPSTF
Importantly, a plan may use reasonable medical management techniques to determine any such coverage limitations, if a guideline does not specify the frequency, method, treatment or setting for the provision of a recommended preventive service.
Aspects of Preventive Care Covered in the FAQs
- Lactation support – Plans must provide a list of lactation counseling providers within the plan’s network, but can furnish the list in a separate document to accompany the summary plan description (SPD). Also, if lactation counselors are not included in the plan’s network, the plan cannot apply any cost sharing to any service provided by an out-of-network provider. Plans cannot limit lactation counseling to impatient services and cannot impose time limits on the rental or purchase of breastfeeding equipment, such as a requirement that coverage is only provided within six months of delivery.
- Obesity – Plans may not impose a blanket exclusion on weight management services for obese adults because the USPSTF currently recommends, for adult patients with a body mass index (BMI) of 30 kg/m2 or higher, intensive, multicomponent behavioral interventions for weight management. The recommendation specifies that intensive, multicomponent behavioral interventions include, for example, group and individual sessions of high intensity (12 to 26 sessions in a year).
Lockton comment: As noted above, health plans may use reasonable medical management techniques to help contains costs. This would include, for example, requiring that the patient receive treatment from a nutritional counselor within the plan’s network of providers.
- Genetic counseling/screening for breast cancer – Women found to be at increased risk for a harmful gene mutation (BRCA) must receive coverage without cost sharing for genetic counseling and, if indicated, testing for BRCA mutations.
- Colonoscopies – Plans must cover pathology exams on polyps with no cost sharing and cannot impose cost sharing on specialist consultations prior to the colonoscopy (effective for plan years beginning on or after Dec. 22, 2015).
Mental Health Parity
Plans cannot deny requests for documents that describe the plans’ medical necessity criteria for both medical/surgical and mental health/substance use disorder benefits on the basis that the information is “proprietary” and/or has “commercial value.”