Immediate Preventive Care Coverage Changes May Be Required for Employer-Sponsored Health Plans
New guidance, in the form of FAQs, has just been issued about preventive care benefits that non-grandfathered health plans must cover with no cost sharing under the Affordable Care Act. This new guidance may require mid-year changes in plan coverage for many employers. The existing guidance defines "preventive care benefits" by cross-referencing certain lists of recommended preventive care. Because these lists were developed mainly as best practices lists for health care providers in providing preventive care, it is not always clear how the lists translate into what items and services must be covered. For example, the lists include counseling for BRCA screening for the breast cancer susceptibility gene, but the existing guidance is ambiguous on whether the test itself must be covered. Likewise, the lists recommend over-the-counter ("OTC") drugs, such as aspirin and folic acid, for individuals in certain risk categories, but the existing guidance is ambiguous on whether these OTC drugs must be covered.
The new guidance addresses some of these ambiguities and requires that a number of items be covered with no cost-sharing, including the following:
- Aspirin and other OTC items and services recommended in these lists, but only when prescribed by a health care provider;
- BRCA testing for women whose family history is associated with an increased risk for deleterious mutations in the BRCA1 or BRCA2 genes, if recommended by her health care provider;
- Preventive care that is recommended for certain high-risk individuals (for example, due to a family history of a particular disease), if a health care provider determines that a participant is in the high-risk population;
- Multiple well-woman visits if needed to obtain all necessary recommended preventive services, depending on a woman's health status, health needs, and other risk factors; and
- OTC contraceptive methods for women, but only if the method is both FDA-approved and prescribed by a health care provider.
As with all preventive care, non-grandfathered plans can limit coverage to in-network and can apply reasonable medical management to this coverage. However, if a plan does not have any in-network provider to provide a required preventive service, then the plan cannot impose cost-sharing if a participant obtains the service from an out-of-network provider.
As a result of this new guidance, and because the new guidance does not include a deferred effective date, we recommend that plan sponsors immediately review their non-grandfathered plans to make sure they are in compliance. Plan sponsors should also consult with vendors to determine the most cost-efficient way to deliver these benefits. For example, plan sponsors could choose to cover only prescribed OTC drugs through mail order. In addition, plan sponsors should consider updating participant communications, including issuing summaries of material modification for ERISA plans and making any necessary changes to summaries of benefits and coverage.
For further information, please contact your principal Firm representative or one of the lawyers listed below. General email messages may be sent using our "Contact Us" form, which can be found at www.jonesday.com.
Marlene P. Frank
Sarah H. Griffin
Daniel C. Hagen
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