Originally posted by www.simandlhrlaw.com

Recently, the Departments of Labor, Health and Human Services, and Treasury jointly issued guidance on the coverage of preventive services required under the Affordable Care Act (ACA). By way of background, the ACA requires that non-grandfathered group health plans provide preventive services, such as screenings, immunizations, contraception, and well-woman visits, without cost-sharing requirements. The preventive services are based upon recommendations of the United States Preventive Services Task Force (USPSTF) and comprehensive guidelines supported by the Health Resources and Services Administration (HRSA). The new guidance is outlined in Part XXVI of the series FAQs About Affordable Care Act Implementation and clarifies the coverage of preventive services specifically related to: 

  • Contraceptives;
  • BRCA Testing;
  • Gender-Specific USPSTF Recommendations; and
  • Pregnancy Care for Dependents.

Contraceptive Coverage

Prior guidance issued by the Departments required that women have access to the full range of FDA-approved contraceptive methods without cost-sharing. However, the guidance also provided that health plans were permitted to use reasonable medical management techniques to control costs such as imposing cost-sharing on brand name drugs to encourage the use of generic equivalents. The new FAQs provide further guidance on the scope of coverage required for contraception and what constitutes “reasonable” medical management techniques.

The individual FAQs on contraception clarified the following requirements:

  • Health plans must cover without cost-sharing at least one version of all the contraception methods identified in the FDA Birth Control Guide. Currently, the guide lists 18 forms of contraception including, but not limited to: oral contraceptives; intrauterine devices; barriers; hormonal patches; and sterilization surgery.
  • Plans may use reasonable medical management such as imposing cost-sharing on some items and services to encourage individuals to use other items or services within the contraception method. For example, a plan may impose cost-sharing (including full cost-sharing) on brand name oral contraceptives to encourage use of generics or impose different copayments to encourage the use of one of several FDA-approved intrauterine devices.
  • If the health plan is using medical management to control costs within a specified contraception method, the plan must have an exception process that is “easily accessible, transparent and sufficiently expedient” and that is not unduly burdensome on the individual, provider or individual acting on the individual’s behalf. Also, the plan is required to defer to the determination of the individual’s attending provider. Thus, the plan must cover an item or service without cost-sharing if a treating physician deems it medically necessary.
  • Plans that try to offer coverage for some – but not all – FDA-identified contraceptive methods will not comply with the health care reform law and its rules. For example, plans cannot cover barrier and hormonal methods of contraception while excluding coverage for implants or sterilization.

BRCA Testing

The preventive services required under the ACA include screening for women who have a family member with breast, ovarian, tubal or peritoneal cancer to identify a family history that may be associated with an increased risk related to the breast cancer susceptibility genes – BRCA 1 or BRCA 2. Prior guidance clarified that women with positive screening results should receive genetic counseling and, if indicated after counseling, BRCA testing. However, there was confusion as to whether or to what extent the recommendation applied to a woman with a personal history of cancer that was not BRCA-related.

The new guidance clarifies that the USPSTF recommendation applies to women with a history of non-BRCA related cancer. Thus, a plan or issuer is required to cover without cost-sharing preventive screening, genetic counseling, and if deemed appropriate by her treating physician, BCRA tests for such women. The new guidance further clarifies that these preventive services must be provided regardless of whether a woman is exhibiting any symptoms and even if she is currently cancer-free.

Coverage of Preventive Services Based on Gender Identity

A number of the preventive services required by the ACA are gender-specific such as mammograms and BRCA testing for women and prostate exams for men. The new guidance clarifies that non-grandfathered health plans cannot limit coverage of preventive services based on an individual’s sex assigned at birth, gender identity, or gender recorded by the plan. Rather, if the individual otherwise satisfies the criteria under the recommendation or guideline and is eligible under the terms of the plan, the plan must provide the preventive services that the individual’s provider determines are medically appropriate. This means, for example, providing without cost-sharing a mammogram for a transgender man who has residual breast tissue.

Coverage for Dependents of Preventive Services Related to Pregnancy

Traditionally, a group health plan was able to restrict coverage for maternity care to employees and employees’ spouses. However, under the ACA those benefits must now be provided to an eligible dependent. The new FAQs clarify that to the extent the maternity care is a preventive service under the ACA, the plan must provide prenatal benefits and other services intended to assist with healthy pregnancies to an eligible dependent without cost-sharing. The guidance further clarifies that an eligible dependent must be provided all other age appropriate women’s health services without cost-sharing.

Action Steps

This recent guidance is a clarification of the existing preventive services required under the ACA rather than a modification. Accordingly, there is no delayed effective date typically applied to changes in preventive services. Employers and plan sponsors should review their plan documents and their administrative practices to ensure the plan is providing coverage of preventive services in accordance with the new guidance. Failure to provide the preventive services as required by the ACA could subject the employer to penalties of up to $100 per day per participant.