November 12, 2015
Authored by: Serena Yee and Lisa Van Fleet
Last month the U.S. Departments of Labor, Health and Human Services and Treasury published FAQs offering a veritable potpourri of guidance addressing preventive services, wellness programs and mental health parity. Some potpourris offer a pleasing aroma – other not so much. Decide for yourself whether this potpourri of guidance is pleasing based on the following summary.
PREVENTIVE SERVICES – New guidance expands coverage obligations.
Non-grandfathered health plan must cover certain preventive services without the imposition of any cost sharing.
Lactation Counseling/Equipment. Among the preventive services that a non-grandfathered health plan must cover in-network without cost-sharing is comprehensive prenatal and postnatal lactation support, counseling, and equipment rental. The Departments provided the following clarifications with respect to such preventive service:
- If participants do not have access to lactation counseling in-network, the plan must cover such services received from out-of-network provider at no-cost as preventive services.
- The list of network providers as required to be disclosed or made available to participants under ERISA must include in-network lactation counseling providers.
- A plan must cover lactation counseling services performed by any provider acting within the scope of his or her state license or certification (g., registered nurse), subject to reasonable medical management techniques.
- A plan cannot limit coverage for lactation counseling to inpatient services.
- Coverage for lactation support services must extent for the duration of the breastfeeding (assuming the individual remains covered under the plan).
- Coverage for the rental or purchase of breastfeeding equipment generally cannot be restricted to a specific time period (g., within 6 months after delivery); but rather, must be available for the duration of the breastfeeding (assuming the individual remains covered under the plan).
Weight Management Services. Current recommendations for adults include screening for obesity as well as intensive, multicomponent behavioral interventions for weight management. Consequently, a non-grandfathered health plan cannot include a general exclusion for weight management services for adult obesity.
Colonoscopies. In situations in which a colonoscopy is scheduled and performed as a screening procedure, a non-grandfathered health plan cannot impose any cost-sharing on any required pre-procedure consultations or pathology exams on polyp biopsies. Recognizing that prior guidance may reasonably have been interpreted in good faith as not requiring coverage without cost-sharing for such services, the Departments provided that this clarifying guidance would apply for plan years beginning 60 days after the publication of the FAQs (i.e., January 1, 2016 for calendar year plans).
Religious Accommodations for Contraceptive Coverage. A qualifying nonprofit or closely held for-profit company can seek a religious accommodation to the contraceptive coverage mandate using one of the following methods:
- Provide a completed EBSA Form 700 to the plan’s third party administrator.
- Provide appropriate notice of objection to HHS.
The Form 700 or notice of objection will serve as the plan instrument relieving the entity from any obligation to contract, arrange, or pay for contraceptive services to which it objects and the plan’s third party administrator will be designated as the ERISA plan administrator responsible for separately providing payments for the contraceptive services.
BRCA Screening and Genetic Counseling and Testing. The current preventive services recommendations include screening women who have family members with certain cancers to identify a family history that may be associated with an increased risk for potentially harmful BRCA mutations. The Departments clarify that genetic counseling and, if indicated, BRCA testing must be covered as preventive services for a woman who has been screened and found to be at increased risk of having a potential harmful gene mutation, even if she has previously been diagnosed with cancer, so long as she is not currently symptomatic of or receiving active treatment for breast, ovarian, tubal, or peritoneal cancer.
WELLNESS PROGRAMS – Don’t forget those water bottles!
The 2013 final wellness regulations set the maximum permissible reward under a health-contingent wellness program that is part of a group health plan at 30% of the total cost of coverage under the plan (or 50% for wellness programs designed to prevent or reduce tobacco use). The Departments provided a reminder that a reward may be financial, non-financial or in-kind. Consequently non-financial (or in-kind) incentives (e.g., gift cards, water bottles and sports gear) provided by a group health plan to participants satisfying a standard related to a health factor are rewards subject to the 2013 regulations.
MENTAL HEALTH PARITY – No easy outs on medical necessity disclosures.
The Mental Health Parity and Addiction Equity Act requires the plan administrator to make the criteria for medical necessity determinations with respect to mental health and substance use disorder benefits available to any current or potential participant, beneficiary, or contracting provider upon request. The reason for any denial of reimbursement or payment for services with respect to mental health and substance use disorder benefits also must be made available to participants and beneficiaries.
The Departments had previously expressed their opinion that such documents as well as the processes, strategies, evidentiary standards, and other factors used to apply a nonquantitative treatment limitation with respect to medical/surgical benefits and mental health/substance use disorder benefits also fall within the disclosure obligations under ERISA Section 104(b) (i.e., instrument under which the plan is established or operated) and the DOL claims regulations (i.e., all documents, records, and other information relevant to the claimant’s claim for benefits).
Under the FAQs, the Departments clarified that a health plan cannot refuse to disclose such information on the grounds that it is “proprietary” or has “commercial value.” A plan is not required to, but may, provide a summary description of the medical necessity criteria in layperson’s terms. However, any such summary description cannot serve as a substitute for the actual underlying medical necessity criteria, if requested.