ERISA-DOL Provides Guidance On Preventive Services That Must Be Provided By Healthcare Plans Under The Affordable Care Act

As noted in my blog on February 22, in FAQs about Affordable Care Act Implementation Part XII, the Department of Labor provides guidance on preventive services that must be provided by healthcare plans under the Affordable Care Act. The FAQs say the following:

Coverage Of Preventive Services. Public Health Services (“PHS”) Act section 2713 requires “non-grandfathered” group health plans to provide benefits for, and prohibit the imposition of cost-sharing requirements with respect to, the following:

• Evidenced-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (“USPSTF”) with respect to the individual involved;

• Immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices (“ACIP”) of the Centers for Disease Control and Prevention (“CDC”) with respect to the individual involved;

• With respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration (“HRSA”); and
• With respect to women, evidence-informed preventive care and screening provided for in comprehensive guidelines supported by HRSA, to the extent not already included in certain recommendations of the USPSTF.

Technical Issues. The guidance provided by the FAQs include the following:

–If the plan does not have any in-network providers to provide a particular preventive service required under PHS Act section 2713, the plan may not impose cost-sharing on the particular service obtained out-of-network.

–Aspirin and other over-the- counter (“OTC”) items and services recommended by the USPSTF must be covered without cost-sharing only when prescribed by a health care provider.

— Contraceptive methods that are generally available OTC are only included in preventive services if the method is both FDA-approved and prescribed for a woman by her health care provider.

–Genetic counseling and breast cancer susceptibility gene (“BRCA”) testing must be made available as a preventive service without cost-sharing.

–Some USPSTF recommendations apply to certain populations identified as high-risk. Identification of “high-risk” individuals is determined by the attending service provider. Therefore, if the attending provider determines that a patient belongs to a high-risk population, and a USPSTF recommendation applies to that population, that service is required to be covered without cost-sharing, subject to reasonable medical management.

–PHS Act section 2713 and the interim final regulations require coverage for immunizations for routine use in children, adolescents, and adults that have in effect a recommendation by the ACIP for routine use. The vaccines must be covered without cost-sharing requirements when the service is delivered by an in-network provider.

–The recommendations for women’s preventive services in the HRSA Guidelines do not require multiple visits for separate services. Reasonable medical management techniques may be used to determine the frequency, method, treatment, or setting for “well-woman” visits.

–The HRSA Guidelines recommend at least one annual well-woman preventive care visit for adult women to obtain the recommended preventive services that are age- and developmentally-appropriate, including preconception and prenatal care. Thus, the plan must provide this visit without any cost-sharing. Additional well-woman visits may be needed to obtain all necessary recommended preventive services, depending on a woman’s health status, health needs, and other risk factors. If the health service provider determines that a patient requires additional well-woman visits for this purpose, then the additional visits must be provided without cost-sharing and subject to reasonable medical management.

–The HRSA Guidelines include a recommendation for annual HIV counseling and screening for all sexually active women, and the term “screening” means actual testing for HIV. The plan must provide the testing without cost-sharing.

–The HRSA Guidelines include a recommendation for all Food and Drug Administration (FDA) approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity, as prescribed by a health care provider. The plan must provide these items and services without cost-sharing and subject to reasonable medical management techniques. The plan may not cover only oral contraceptives.

–The USPSTF recommends breastfeeding counseling. This service and any needed equipment must be provided without cost-sharing, subject to reasonable medical management.

Note: Since the FAQs do not provide an effective date for the guidance given, it appears that the guidance is effective immediately. Thus, an employer may have to immediately amend or modify its healthcare plan to provide the required preventive services discussed in the FAQs.

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