August 4, 2010

Agencies Publish Guidance on Preventive Care for Group Health Plans

By Nancy K. Campbell

On July 14, 2010, the Departments of Labor, Health and Human Services, and Treasury issued interim final regulations (the “Regulations”) implementing the preventive services provisions of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively the “Act”). The Regulations were published in the Federal Register on July 19, 2010.

Section 2713 of the Act and the Regulations require non-grandfathered group health plans, whether insured or self-funded, to cover evidence-based preventative services and to eliminate cost sharing for preventive care. This means that preventive services that have strong scientific evidence of their health benefits must be covered and non-grandfathered plans can no longer charge a patient a copayment, coinsurance, or deductible for these services when they are delivered by a network provider. The purpose of the rules is to make preventive care more affordable and more accessible.

The requirements to cover recommended preventive services without any cost sharing requirements do not apply to grandfathered health plans. For additional information on grandfathered health plans see Health Care Alert: New Grandfathered Plan Rules Have Important Implications for Existing Group Health Plans.

Effective Date

Section 2713 of the Act is generally effective for plan years beginning on or after September 23, 2010. The Regulations are effective on September 17, 2010 and generally apply to group health plans for plan years beginning on or after September 23, 2010. Accordingly, non-grandfathered group health plans with calendar year plan years must comply with the Regulations effective January 1, 2011.

“Recommended Preventive Services”

Plans subject to these rules must offer coverage of a comprehensive range of preventive services that are recommended by physicians and other experts without imposing any cost sharing requirements. Specifically these recommendations include:

  • Evidence-based preventive services: The U.S. Preventive Services Task Force, an independent panel of scientific experts, ranks preventive services based on the strength of the scientific evidence documenting their benefits. Preventive services with a “grade” of A or B, like breast and colon cancer screenings, screening for vitamin deficiencies during pregnancy, screenings for diabetes, high cholesterol and high blood pressure, and tobacco cessation counseling will be covered under these rules.
  • Routine vaccines: Health plans will cover a set of standard vaccines recommended by the Advisory Committee on Immunization Practices ranging from routine childhood immunizations to periodic tetanus shots for adults.
  • Prevention for children: Health plans will cover preventive care for children recommended under the Bright Futures guidelines, developed by the Health Resources and Services Administration with the American Academy of Pediatrics. These guidelines provide pediatricians and other health care professionals with recommendations on the services they should provide to children from birth to age 21 to keep them healthy and improve their chances of becoming healthy adults. The types of services that will be covered include regular pediatrician visits, vision and hearing screening, developmental assessments, immunizations, and screening and counseling to address obesity and help children maintain a healthy weight.
  • Prevention for women: Health plans will cover preventive care provided to women under both the Task Force recommendations and new guidelines being developed by doctors, nurses, and scientists, which are expected to be issued by August 1, 2011.

Together, the items and services described in the recommendations and guidelines are referred to as “recommended preventive services.”

Changing Standards

Guidelines for preventive services are regularly updated to reflect new scientific and medical advances. As new services are approved, health plans will be required to cover them with no cost sharing for plan years beginning one year later. A full list of the covered services is available at http://www.HealthCare.gov/center/regulations/prevention.html. Any change to a recommendation or guideline that has, at any point since September 23, 2009, been included in the recommended preventive services will be noted at the same web site.

Plans need not make changes to coverage and cost sharing requirements based on a new recommendation or guideline until the first plan year beginning on or after the date that is one year after the new recommendation or guideline went into effect.[1]. By visiting the site once per year, plans will have straightforward access to all the information necessary to determine any additional items or services that must be covered without cost sharing requirements, or to determine any items or services that are no longer required to be covered.

The Regulations clarify that a plan is not required to provide coverage, or waive cost sharing requirements, for any item or service that has ceased to be a recommended preventive service. However, other requirements of federal or state law may apply in connection with ceasing to provide coverage or changing cost sharing requirements for any such item or service. For example, Section 2715(d)(4) of the Act requires a plan to give 60 days advance notice to an enrollee before any material modification will become effective.

Office Visits

The Regulations clarify how the cost sharing requirements apply when a recommended preventive service is provided during an office visit. If a recommended preventive service is billed separately (or is tracked as individual encounter data separately) from an office visit, then a plan may impose cost sharing requirements with respect to the office visit. If a recommended preventive service is not billed separately (or is not tracked as individual encounter data separately) from an office visit and the primary purpose of the office visit is the delivery of such an item or service, then a plan may not impose cost sharing requirements with respect to the office visit. Finally, if a recommended preventive service is not billed separately (or is not tracked as individual encounter data separately) from an office visit and the primary purpose of the office visit is not the delivery of such an item or service, then a plan or issuer may impose cost sharing requirements with respect to the office visit.

  • Example 1: An individual receives a cholesterol screening test, a recommended preventive service, during a routine office visit. The plan or issuer may impose cost sharing requirements for the office visit because the recommended preventive service is billed as a separate charge.
  • Example 2: An individual receives a recommended preventive service that is not billed as a separate charge. In this example, the primary purpose for the office visit is recurring abdominal pain and not the delivery of a recommended preventive service. Accordingly, the plan or issuer may impose cost sharing requirements for the office visit.

Network Providers

With respect to a plan that has a network of providers, the Regulations clarify that a plan is not required to provide coverage for recommended preventive services delivered by an out-of-network provider. Such a plan may also impose cost sharing requirements for recommended preventive services delivered by an out-of-network provider.

Frequency, Method, Treatment, and Setting

The Regulations provide that if a recommendation or guideline for a recommended preventive service does not specify the frequency, method, treatment, or setting for the provision of that service, the plan can use reasonable medical management techniques to determine any coverage limitations. Accordingly, under the Regulations, a plan may rely on established techniques and the relevant evidence base to determine the frequency, method, treatment, or setting for which a recommended preventive service will be available without cost sharing requirements to the extent not specified in a recommendation or guideline.

Additional Preventive Services

The Regulations clarify that a plan may cover preventive services in addition to those required to be covered. For such additional preventive services, a plan may impose cost sharing requirements at its discretion. Moreover, a plan may impose cost sharing requirements for a treatment that is not a recommended preventive service, even if the treatment results from a recommended preventive service.

[1] For the purpose of the Regulations, a recommendation or guideline of the Task Force is considered to be issued on the last day of the month on which the Task Force publishes or otherwise releases the recommendation. A recommendation or guideline of the Advisory Committee is considered to be issued on the date on which it is adopted by the Director of the Centers for Disease Control and Prevention. A recommendation or guideline in the comprehensive guidelines supported by the Health Resources and Services Administration is considered to be issued on the date on which it is accepted by the Administrator of HRSA or, if applicable, adopted by the Secretary of Health and Human Services. [Back]

If you have questions about this health care reform alert or would like more information on the Act, you may contact one of the Employee Benefits attorneys listed below or your regular Snell & Wilmer contact at 602.382.6000.

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PHARMACEUTICAL AND MEDICAL DEVICE
Ellen Darling
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Dan Wittenberg
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