By Carol E. Potaczek, J.D.
The Labor Department, the IRS, and the HHS have issued Frequently Asked Questions (FAQs) on health market reform topics that include coverage of preventive services, mental health parity implementation, and implementation of the Women’s Health and Cancer Rights Act. Also included is information on out-of-network emergency services (FAQs about Affordable Care Act Implementation (Part 31), April 20, 2016).
Preventive services. Under Public Health Service Act (PHS Act) section 2713, as added by Section 1001 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), individual and group market health insurance plans and non-grandfathered group health plans must cover, without cost-sharing, a wide array of preventive services. More specifically, the FAQ states that, if a colonoscopy is scheduled and performed as a screening procedure pursuant to United States Preventive Services Task Force (USPSTF) recommendations, plans and issuers may not impose cost sharing for the bowel preparation medications prescribed for the procedure. This is because they are an integral part of the preventive screening colonoscopy.
With regard to FDA-approved contraceptives, the FAQs state that health plans and issuers are allowed to develop standard exception forms that attending medical providers may use to prescribe a particular contraceptive service or FDA-approved item based on a determination of medical necessity regarding the patient involved. The standard exception form may be modeled on the Medicare Part D Coverage Determination Request Form.
Out-of-network services and minimum payment standards. PHS Act Section 2719A, as set forth in ACA Sec. 10101, provides that non-grandfathered group health plans and issuers offering non-grandfathered group or individual coverage may not impose higher cost-sharing amounts on out-of-network emergency services than they do for in-network emergency services. This does not include balance billing, however, which is the practice of billing patients for the difference between a provider’s billed charges and the amount collected from the plan or issuer plus the amount collected from the patient through co-payments or coinsurance. However, although balance billing is not prohibited by PHS Act 2719A, a reasonable amount must be paid by the plan or issuer before a patient becomes responsible for a balance billed amount.
Therefore, the cost-sharing requirements create minimum payment requirements for plans and issuers whereby they must provide benefits for out-of-network services in an amount at least equal to the greatest of the following three amounts, adjusted for in-network cost sharing. Collectively, these are called the minimum payments standards: (1) the median amount negotiated with in-network providers for the emergency service; (2) the amount for the emergency service calculated using the same method the plan uses to determine payments for out-of-network services (such as the usual, customary, and reasonable (UCR) amount); and (3) the amount that would be paid under Medicare for the emergency service.
The FAQs state that plans and issuers are required to disclose how they calculate the amount under the minimum payment standards, including the method they use to determine payments for out-of-network services. In addition, non-grandfathered group plans and issuers of non-grandfathered group or individual coverage must provide claimants appealing adverse benefit determinations, upon request, and free of charge, reasonable access to and copies of all information relevant to the benefit claim.
Clinical trials. The FAQs further state that, if a health plan or issuer generally covers chemotherapy to treat cancer, it may not limit coverage of chemotherapy due to the fact that it is provided in connection with a covered individual’s participation in an approved clinical trial for, for example, a new anti-nausea medication. Futhermore, if the health plan or issuer typically covers certain items and services to diagnose or treat certain complications or adverse events, it may not deny coverage of those items and services for diagnosing or treating those complications or adverse events, such as side effects, that arise in connection with a covered individual’s participation in an approved clinical trial.
MOOP. Under ACA Sec. 1302(c), an individual’s maximum out-of-pocket (MOOP) limit for a non-grandfathered group health plan for 2016 is $6,850 for self-only coverage and $13,700 for other than self-only coverage, and, for 2017, it is $7,150 for self-only coverage and $14,300 for other than self-only coverage. According to the FAQs, if a non-grandfathered large group market or self-insured group health plan pays a fixed amount (known as a reference price) for a particular procedure, but fails to ensure that participants have adequate access to qualify providers that will accept the fixed price as payment in full, it is required to count the participant’s out-of-pocket expenses for providers who do not accept the reference price toward the participant’s MOOP limit.
MHPAEA. The FAQs include a substantial amount of information on the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), which requires that financial requirements and treatment limitations a plan imposes on mental health and substance use disorder MH/SUD benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that it applies to substantially all medical and surgical benefits. This includes the provision that a plan must give a provider acting as a covered individual’s authorized representative the following documents and information upon request: a summary plan description, the specific plan language regarding the imposition of the nonquantitative treatment limitation (NQTL), the specific processes, strategies, evidentiary standards, and other factors considered by the plan in determining that the NQTL will apply to this particular MH/SUD benefit, information regarding the application of the NQTL to any medical/surgical benefits within the benefit classification at issue, the specific underlying processes, strategies, evidentiary standards, and other factors considered by the plan in determining the extent to which the NQTL will apply to any medical/surgical benefits within the benefit classification at issue, and any analyses performed by the plan as to how the NQTL complies with the MHPAEA.
The FAQs further state that the criteria for medical necessity determinations under a group health plan or health insurance coverage with respect to MH/SUD benefits must be made available to any current or potential enrollees or contracting providers upon request. Therefore, even if someone is not yet enrolled in coverage, they are entitled to the information. Also, the MHPAEA applies to benefits plans offer for Medication Assisted Treatment for opioid use disorder.
Women’s health. Finally, the FAQs state that group health plans and issuers offering group or individual health insurance that covers mastectomies must provide coverage for nipple and areola reconstruction as a required stage of breast reconstruction under the Women’s Health and Cancer Rights Act. Plans and issuers may impose deductibles and coinsurance for these benefits only if such cost-sharing requirements are consistent with those established for other benefits under the plan or coverage.
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