EBIA Weekly Newsletter

Agencies Provide Guidance on Preventive Services, Rescissions, Mental Health Parity, and More

   April 28, 2016

FAQs about Affordable Care Act Implementation (Part 31) (Apr. 20, 2016)

DOL website

HHS website

Visit the Health Care Reform Community on Checkpoint to join the discussion on this development (for Checkpoint subscribers to EBIA’s Health Care Reform manual).

The DOL, HHS, and IRS have jointly issued FAQs with guidance on several health care reform requirements, along with mental health parity and the Women’s Health and Cancer Rights Act (WHCRA). Here are highlights:

  • Preventive Services (Q/As-1 & -2). Q/A-1 confirms 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 bowel preparation medications when medically appropriate and prescribed by a provider. Q/A-2 allows plans, as part of utilizing reasonable medical management techniques (see our Checkpoint article), 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 (Q/A-3). This Q/A describes a fact pattern involving a teacher who was employed under a ten-month contract from August 1 to May 31 but had health coverage for the entire August 1–July 31 plan year. (The teacher had fully paid premiums during this period and had not committed fraud or intentional misrepresentation.) According to the FAQ, 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 (Q/A-4). This Q/A confirms that plans are generally required to disclose on request how they calculate payments for out-of-network emergency services (e.g., the usual, customary, and reasonable (UCR) amount) to comply with ERISA’s disclosure provisions, as well as health care reform’s appeals process and external review requirements.
  • Clinical Trials (Q/As-5 & -6). 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 anti-nausea 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 agencies also confirm that the nondiscrimination requirement relating to participation in clinical trials is self-implementing and, until further guidance is issued, plans are expected to follow a good faith, reasonable interpretation of the law (see our Checkpoint article).
  • Cost-Sharing Limits (Q/A-7). Prior FAQ guidance addresses how the overall cost-sharing limit applies to plan designs that use reference-based pricing (i.e., where the plan pays a fixed amount for a particular procedure and providers accept it as payment in full—see our Checkpoint article). Consistent with that guidance, if a plan merely establishes a reference price without using a proper method to ensure reasonable access to quality providers, the plan will not be considered to have established an adequate network and would be required to count an individual’s out-of-pocket expenses for providers who do not accept the reference price toward the maximum annual out-of-pocket limit.
  • Mental Health Parity (Q/As-8 through -11). Clarification is provided as to 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 agencies also address disclosure requirements relating to providers and the individual insurance market.
  • Reconstructive Surgery After Mastectomy Under WHCRA (Q/A-12). The WHCRA protections require that the plan provide coverage for nipple and areola reconstruction (including nipple and areola repigmentation to restore the physical appearance of the breast) as a required stage of breast reconstruction.

EBIA Comment: These FAQs continue the agencies’ trend of addressing specific issues in implementing health care reform and other federal group health plan mandates. They augment some of the guidance previously provided in regulations and other FAQs, and provide important information for those involved with group health plan design and administration. For more information, see EBIA’s Health Care Reform manual at Sections IX.B (“Cost-Sharing Limits”), X.D (“Prohibition on Rescissions”), and XII (“Patient Protections, Preventive Health Services, and Clinical Trials”); EBIA’s Self-Insured Health Plans manual at Section XV.D.4 (“Out-of-Pocket Maximums and Health Care Reform’s Overall Cost-Sharing Limit”); and EBIA’s ERISA Compliance manual at Section XXV.A (“Participant and Beneficiary Right to Request and Examine Documents”). See also EBIA’s Group Health Plan Mandates manual at Sections IX (“Mental Health Parity”), XI (“Reconstructive Surgery After Mastectomy”), and XIII.C (“Coverage of Preventive Health Services”).

Contributing Editors: EBIA Staff.