United States: New FAQs On Preventive Services, Wellness Program Rewards And Mental Health And Substance Use Treatment

Last Updated: November 11 2015
Article by Allison P. Tanner and Robert M. Cipolla

McGuireWoods Healthcare Reform Guide: Installment No. 54

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:

  • Evidence-based screenings and counseling
  • Routine immunizations
  • Certain preventive services for children and youth
  • Certain preventive services for women

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:

  • Although Section 2713 does not expressly require the disclosure of the specific lactation counseling providers available to an individual within the plan’s network, provisions of other applicable law do require plans to disclose this information. Generally speaking, a plan’s summary of benefits and coverage and/or summary plan description must describe the provider network and/or provide access to a list of network providers.
  • If a plan has a lactation counseling provider in its network, it is not required to cover out-of-network lactation counseling services provided. On the other hand, if a plan does not have a lactation counseling provider in its network, a plan must cover items or services provided by an out-of-network lactation counseling provider and may not impose cost-sharing with respect to such items or services.
  • If an individual lives in a state that does not separately license lactation counseling providers, a plan still must cover lactation counseling services, without cost-sharing, when they are performed by any provider acting within the scope of his or her license or certification under applicable state law.
  • The lactation counseling that is covered, without cost-sharing, may not be limited to inpatient services. It is not a reasonable medical management technique to limit coverage to inpatient services because not all births are associated with hospital admission and often, even for births that are associated with hospital admission, lactation support services continue after an individual has left the hospital.
  • A plan must cover the rental or purchase of breastfeeding equipment without cost-sharing for the entire duration of breastfeeding, so long as an individual remains continuously enrolled in the plan.

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:

  • If the attending provider determines that it is medically appropriate to require a pre-procedure consultation in addition to the colonoscopy procedure, the plan may not impose any cost-sharing with respect to this required consultation.
  • In addition to covering the pre-procedure consultation and the colonoscopy, plans also must cover any resulting pathology exam or polyp biopsy without cost-sharing.
  • Because prior guidance issued may have been interpreted as not requiring coverage of a required, pre-procedure consultation or a pathology exam or polyp biopsy performed in connection with a colonoscopy screening procedure without cost-sharing, the above guidance is applicable only to plan years beginning on or after 60 days from the publication of the FAQs, i.e., on or after December 22, 2015.

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.

  • The first method is to complete the Employee Benefits Security Administration Form 700 (accessible on the DOL web page) and provide it to the plan’s third-party administrator (TPA). The Form 700 will be considered a plan instrument that has the effect of designating the TPA as the ERISA plan administrator responsible for separately providing payments for any contraceptive services to which the plan sponsor objects and relieving the plan from the obligation to provide for such coverage.
  • Alternatively, the plan may provide appropriate notice of the objection to HHS (a model notice is available on the Centers for Medicare and Medicaid Services web page). In this case, the notice to HHS will be considered a plan instrument that has the effect of relieving the plan from the obligation to provide for such coverage. HHS will then forward the information to the DOL, which will send a notification to the TPA designating it as the ERISA plan administrator responsible for separately providing payments for any contraceptive services to which the plan sponsor objects. The notice from the DOL to the TPA will be viewed as a separate plan instrument that has the effect of designating the TPA as the ERISA plan administrator responsible for separately providing payments for any contraceptive services to which the plan sponsor objects.

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:

  • Upon request, a plan must provide an individual with the criteria for making medical-necessity determinations, as well as any processes, strategies, evidentiary standards or other factors used in developing the underlying nonquantitative treatment limitations and applying it with respect to both MH/SUD and medical/surgical benefits. This information must be provided regardless of any claims as to the proprietary nature or commercial value of the information.
  • A plan also may provide a summary of the medical necessity criteria in layperson’s terms, but this is not required. However, providing such a summary document does not relieve the plan of the obligation to provide actual underlying medical necessity criteria if it is requested.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions