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.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.