On October 23, the Departments of Labor, Health and Human Services and the Treasury released FAQs Part XXIX regarding the implementation of the Affordable Care Act and the Mental Health Parity and Addiction Act.
The ACA requires most group health plans to cover preventive services. FAQs XXIX provide guidance on the application of those requirements to lactation counseling, weight management services, colonoscopies and BRCA testing. Employers that sponsor self-insured plans will want to review the FAQs to make sure that they are providing benefits in compliance with the ACA. Some highlights:
- If a plan’s provider network does not include lactation counselors, the plan must pay for out-of-network counseling without cost sharing.
- Many plans contain a broad exclusion for weight management services. However, that exclusion must yield to the ACA’s requirement to provide preventive weight management services for adult obesity. This includes “intensive, multicomponent behavioral interventions”.
- Coverage without cost-sharing of screening colonoscopies must include charges for pre-procedure consultation and polyp biopsy.
- Women found to be at increased risk breast cancer using a screening tool designed to identify a family history that may be associated with an increased risk of having a potentially harmful gene mutation must receive coverage without cost sharing for genetic counseling, and, if indicated, testing for harmful BRCA mutations. The FAQ clarifies that this applies regardless of whether the woman has previously been diagnosed with cancer, as long as she is not currently symptomatic of or receiving active treatment for breast, ovarian, tubal, or peritoneal cancer.
In addition, the FAQs outline the process whereby a non-profit, or closely held for-profit employer with sincerely held religious objections to providing contraceptive coverage, may effectuate the religious accommodation relieving the employer of having to do so.
Finally, the FAQs reminded plan administrators of their previous guidance regarding a plan’s disclosure obligations regarding the criteria for medical necessity determinations. Specifically, the criteria for medical necessity determinations with respect to mental health and substance use disorders (“MH/SUD”) must be made available by the plan administrator to any current or potential participant, beneficiary, or contracting provider upon request and the reason for any denial of reimbursement or payment for services must be made available to participants and beneficiaries. This includes the processes, strategies, evidentiary standards, and other factors used to apply a non-quantitative treatment limitation.
This obligation will be of particular interest to employers who use a third party to manage MH/SUD claims. The third parties will sometimes insist that they are not obliged to make these types of disclosures on the grounds that their medical necessity criteria are proprietary, confidential or have commercial value. The FAQs pointedly state that these objections will not overcome a plan’s disclosure obligations.