DOL website

HHS website

The DOL, HHS, and IRS have jointly issued FAQs addressing a variety of preventive services required to be provided without cost-sharing by non-grandfathered, nonexcepted group health plans, as well as wellness programs and mental health parity. Here are highlights:

• Lactation Counseling and Equipment (Q/As-1 through -5). Q/A-2 reiterates, based on previous FAQ guidance (see our article), that a plan must cover out-of-network lactation counseling as a preventive service without cost-sharing if the plan does not have a provider in its network. Q/A-3 explains that a plan must cover (without cost-sharing) lactation counseling services from any providers acting within the scope of their state licenses or certifications (e.g., registered nurses). Q/As-4 and -5 warn that coverage for lactation counseling without cost-sharing cannot be limited to inpatient services, and that coverage for breastfeeding equipment without cost-sharing generally cannot be restricted to a specific time period after delivery. And Q/A-1 elaborates on the requirement to make a list of in-network lactation counseling providers available to participants.
• Weight Management Services (Q/A-6). This Q/A advises that plans cannot contain a general exclusion for weight management services for adult obesity, explaining that plans are required to cover without cost-sharing, as preventive services, screening for obesity in adults and specific behavioral interventions listed in the United States Preventive Services Task Force (USPSTF) recommendations for adults based on body mass index.
• Colonoscopies (Q/As-7 & -8). Following up on previous FAQ guidance about colonoscopies performed as preventive screening procedures (see our article), two Q/As clarify that plans may not impose cost-sharing for required pre-procedure consultations or for pathology exams on polyp biopsies. This guidance will apply as of January 1, 2016 for calendar-year plans.
• Contraceptive Coverage: Religious Accommodation (Q/A-9). This Q/A explains in detail the two methods available for qualifying nonprofit or closely held for-profit employers seeking a religious accommodation to the contraceptive coverage mandate.
• Breast Cancer Susceptibility Gene (BRCA) Screening, Genetic Counseling and Testing (Q/A-10). Noting that previous FAQ guidance on preventive services has addressed BRCA-related issues, this new Q/A clarifies that genetic counseling and, if indicated, testing for harmful BRCA mutations must be available without cost-sharing to a woman who has been screened and found to be at increased risk of having a potential harmful gene mutation, even if she has previously been diagnosed with cancer, so long as she is “not currently symptomatic of or receiving active treatment for breast, ovarian, tubal, or peritoneal cancer.”
• Wellness Programs (Q/A-11). Noting that under wellness program regulations jointly issued by the DOL, HHS, and IRS in 2013, wellness “rewards” include financial and non-financial incentives and disincentives, this Q/A points out that in-kind wellness program rewards (e.g., gift cards and sports gear) provided by a group health plan based on satisfaction of a standard related to a health factor are subject to the regulations. This includes the provisions of the regulations setting the maximum permissible reward under a health-contingent wellness program.
• Mental Health Parity (Q/As-12 & -13). These Q/As build on earlier guidance indicating that information relevant to a participant’s claim for benefits includes documents on medical necessity criteria for both medical/surgical and mental health/substance use disorder benefits, as well as the processes, strategies, evidentiary standards, and other factors used to apply treatment limitations. In the context of treatment for anorexia characterized as a mental health benefit, Q/A-12 explains that the required disclosures must be made regardless of any assertions that the information is “proprietary” or has “commercial value.” Q/A-13 notes that group health plans may, but are not required to, provide a summary description of the medical necessity criteria in layperson’s terms, although such a document is not a substitute for the actual underlying medical necessity criteria, if requested.

Comment: These FAQs provide answers to a mix of specific questions based on focused facts and general questions with broader applicability; health plan sponsors and advisors will want to pick through them carefully.