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Questions on Contraceptive Services Top Latest Set of ACA FAQs on Preventive Services

EBSA, in a new FAQ prepared jointly with IRS and the Department of Health and Human Services (HHS) (collectively, the Departments), has provided guidance on several issues involving contraceptive services, as well as guidance on other preventive services required by the Affordable Care Act (ACA) related to women’s health services, gender-specific services, and colonosocopies. ( EBSA, FAQs about Affordable Care Act Implementation (Part XXVI), 5/11/2015FAQs about Affordable Care Act Implementation (Part XXVI), 5/11/2015 )

PHSA §2713, as added by ACA and incorporated under Code Sec. 9815(a)(1) and ERISA § 715(a)(1), specifies that a group health plan and a health insurance issuer offering group or individual health insurance coverage must provide benefits without cost sharing with respect to (1) services recommended by the U.S. Preventive Services Task Force (USPSTF), (2) immunizations recommended by the Advisory Committee on Immunization Practices of the CDC (ACIP), (3) preventive care and screenings for infants, children, and adolescents supported by HHS’s Health Resources and Services Administration (HRSA), and (4) preventive care and screenings for women supported by HRSA, which, among other things, include contraceptive methods and counseling, including all Food and Drug Administration (FDA) approved contraceptive methods. (See Pension and Benefits Week ¶  1  7/19/2010.)

Contraceptive services. With respect to contraceptive services, the Departments advise that if a group health plan covers some forms of oral contraceptives, some types of IUDs, and some types of diaphragms without cost sharing, but excludes completely other forms of contraception, the plan will not be in compliance with PHSA §2713. Plans must cover without cost sharing the full range of FDA-identified methods, which means that a plan must cover without cost sharing at least one form of contraception in each of the (currently) 18 distinct methods identified by the FDA. A plan generally may use reasonable medical management techniques and impose cost sharing (including full cost sharing) to encourage an individual patient to use specific services or FDA-approved items within the chosen contraceptive method. When utilizing reasonable medical management techniques, plans must have an easily accessible, transparent, and sufficiently expedient exceptions process that is not unduly burdensome on the individual, to ensure coverage without cost sharing of any service or FDA-approved item within the specified method of contraception. (Q&A 2Q&A 2)

However, if the individual’s attending provider recommends a particular service or FDA-approved item based on a determination of medical necessity with respect to that individual, the plan must cover that service or item without cost sharing. The plan must defer to the determination of the attending provider with respect to the individual involved. (Q&A 3Q&A 3)

In addition, the Departments state that, if a plan covers oral contraceptives (such as the extended/continuous use contraceptive pill), the plan cannot impose cost sharing on all items and services within other FDA-identified hormonal contraceptive methods (such as the vaginal contraceptive ring or the contraceptive patch). Since plans must cover without cost sharing at least one form of contraception within each method that the FDA has identified, for the hormonal contraceptive methods, coverage must include at least all three oral contraceptive methods (combined, progestin-only, and extended/continuous use), injectables, implants, the vaginal contraceptive ring, the contraceptive patch, emergency contraception (Plan B/Plan B One Step/Next Choice), emergency contraception (Ella), and IUDs with progestin. (Q&A 4Q&A 4)

Other preventive services. With respect to other preventive services, the Departments guidance provides the following:

1. A plan must cover, without cost sharing, recommended genetic counseling and breast cancer susceptibility gene (BRCA) testing for a woman who has not been diagnosed with BRCA-related cancer but who previously had breast cancer, ovarian cancer, or other cancer. The Departments point out that, since the USPSTF’s recommendations regarding BRCA testing state the recommendations apply “to asymptomatic women who have not been diagnosed with BRCA-related cancer,” as long as a woman has not been diagnosed with BRCA-related cancer, a plan must cover preventive screening, genetic counseling, and genetic testing without cost sharing, if appropriate, for a woman as determined by her attending provider. (Q&A 1Q&A 1)
2. A plan cannot limit sex-specific recommended preventive services based on an individual’s sex assigned at birth, gender identity, or recorded gender. Whether a sex-specific recommended preventive service that must be covered without cost sharing under PHSA §2713 is medically appropriate for a particular individual is determined by the individual’s attending provider. Where an attending provider determines that a recommended preventive service is medically appropriate for the individual—such as, for example, providing a mammogram or pap smear for a transgender man who has residual breast tissue or an intact cervix—and the individual otherwise satisfies the criteria in the relevant recommendation or guideline as well as all other applicable coverage requirements, the plan must provide coverage for the recommended preventive service, without cost sharing, regardless of sex assigned at birth, gender identity, or gender of the individual otherwise recorded by the plan. (Q&A 5Q&A 5)
3. A plan that covers dependent children must cover without cost sharing recommended women’s preventive care services for dependent children, including recommended preventive services related to pregnancy, such as preconception and prenatal care. Dependent children must be provided the full range of recommended preventive services applicable to them (that is, for their age group) without cost sharing and subject to reasonable medical management techniques. Thus, for example, since the HRSA Guidelines recommend well-woman visits for adult women to obtain the recommended preventive services that are age- and developmentally-appropriate, including preconception care and many services necessary for prenatal care, a plan must cover without cost sharing these recommended preventive services for dependent children where an attending provider determines that well-woman preventive services are age- and developmentally-appropriate for the dependent. (Q&A 6Q&A 6)
4. If a colonoscopy is scheduled and performed as a preventive screening procedure for colorectal cancer in accordance with the USPSTF recommendation, a plan may not impose cost sharing with respect to anesthesia services performed in connection with the preventive colonoscopy, if the attending provider determines that anesthesia would be medically appropriate for the individual. (Q&A 7Q&A 7)
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