United States: ACA Update: Agencies Release Important Guidance and Materials

Earlier this year, the Department of Labor, the Department of Health and Human Services and the IRS jointly issued a set of FAQs regarding the Affordable Care Act (ACA). The guidance addresses a variety of important requirements under the law. Here are some highlights:

Preventive services. The FAQs confirm that the required preparation for a preventive screening colonoscopy is an integral part of the procedure and must be covered without cost-sharing, subject to reasonable medical judgment. This includes preparatory medications when medically appropriate and prescribed by a provider.

Furthermore, the guidance allows plans, as part of using reasonable medical management techniques, to develop a standard exception form that providers may use to prescribe particular services or FDA-approved items based on a medical necessity determination for an individual. The "Medicare Part D Coverage Determination Request Form" may be used as a model for this purpose.

Rescissions. Under the ACA, rescission is the retroactive cancellation of a policy. This action is generally illegal except in cases of fraud or intentional misrepresentation of material fact.

The FAQs describe a fact pattern involving a teacher who was employed under a 10-month contract from August 1 to May 31, but had health coverage for the entire August 1 to July 31 plan year. (The teacher had fully paid premiums during this period and hadn't committed fraud or intentional misrepresentation.)

According to the guidance, if the teacher resigned on July 31, termination of coverage retroactive to May 31 would constitute a prohibited rescission. The plan could, however, terminate coverage prospectively, subject to other applicable laws.

Out-of-network emergency services. The FAQs confirm that plans are generally required to disclose on request how they calculate payments for out-of-network emergency services — for example, the usual, customary and reasonable amount — to comply with disclosure requirements under the Employee Retirement Income Security Act, as well as the ACA's appeals process and external review requirements.

Clinical trials. If a plan generally covers chemotherapy to treat cancer, it may not limit that coverage for chemotherapy provided in connection with an individual's participation in an approved clinical trial for a new antinausea medication. Similarly, if a plan typically covers items or services to diagnose or treat certain complications or side effects, the plan may not deny coverage of these items or services to diagnose or treat complications or side effects in connection with an approved clinical trial.

The guidance also confirms that the nondiscrimination requirement relating to participation in clinical trials is self-implementing. Until further guidance is issued, plans are expected to follow a good-faith, reasonable interpretation of the law.

Cost-sharing limits. Previously issued FAQs address how the overall cost-sharing limit applies to plan designs that use reference-based pricing. This involves the plan paying a fixed amount for a particular procedure and providers accepting it as payment in full.

Consistent with that guidance, if a plan merely states a reference price without using a proper method to ensure reasonable access to quality providers, the plan won't be considered to have established an adequate network. Such a plan would be required to count an individual's out-of-pocket expenses for providers who don't accept the reference price toward the maximum annual out-of-pocket limit.

Mental health parity. The Mental Health Parity and Addiction Equity Act requires group plans to ensure that financial obligations (such as co-pays and deductibles) and treatment limitations (such as limits on visits) for mental health and substance abuse issues aren't more restrictive than those applied to other medical/surgical benefits.

The FAQs clarify how to perform the "substantially all" and "predominant" tests for financial requirements and quantitative limitations under the mental health parity requirements. The agencies note that these requirements apply to any benefits a plan may offer for medication-assisted treatment for opioid use disorder. The guidance also addresses disclosure requirements relating to providers and the individual insurance market.

Final SBC template and related materials now available

This past April, the Department of Labor and the Department of Health and Human Services released the final revised template and related materials for the summary of benefits and coverage (SBC). The final versions, which will replace materials in use since 2012, largely reflect the revisions proposed recently. Important aspects include the:

SBC template and instructions. The template itself is substantially similar to the most recent proposal. In the "Why This Matters" column relating to the "Important Questions" chart, the prescribed language for describing certain coverage components — including services covered before the deductible is met, embedded deductibles for family coverage and out-of-pocket limits — has been made clearer and more straightforward.

For the coverage examples, the instructions explain that the generic "[cost sharing]" notations in the template should be replaced with the appropriate cost-sharing category (for example, co-payment, co-insurance) to accurately reflect the plan. Overall, the instructions provide more details than the currently applicable instructions — for instance, specifying where in the SBC the plan should add premium information, if it voluntarily chooses to do so.

Required usage deadline. Use of the new SBC template and related materials is required starting with the first day of the first open enrollment period that begins on or after April 1, 2017, with respect to coverage for plan years beginning on or after that date. (So, for calendar-year plans, the new materials will be used for the 2017 open enrollment period relating to coverage beginning on or after January 1, 2018.) For plans that don't use an annual open enrollment period, these materials must be used beginning on the first day of the first plan year that begins on or after April 1, 2017.

If you have questions about the ACA update FAQs or would like a copy of the SBC template, please contact Ron Present, Partner and Health Care Industry Group Leader, at rpresent@bswllc.com or 314.983.1358.

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 Topics
Related Articles
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
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.


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.


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