Additional ACA FAQs Released

The Departments of Labor, Health and Human Services and Treasury issued a joint FAQ related to the coverage of contraceptive products as preventive services by group health plans or issuers. The FAQ provides the following:

• Group health plans and issuers are required to cover items or services that are integral to the furnishing of a recommended preventive service. The FAQ clarifies that coverage of anesthesia for a tubal ligation procedure or pregnancy tests required prior to the provision of an intrauterine device would be considered preventive services.
• Group health plans and issuers are required to cover, without the imposition of cost sharing, contraceptive products and services that are not included in a category of contraception described in the Health Resources and Services Administration (“HRSA”) Women’s Preventive Services Guidelines (the “Guidelines”). There are currently eighteen (18) categories of contraception included in the Guidelines. However, if an individual and their provider determine that a contraceptive product that is approved for use by the Food and Drug Administration (“FDA”) is medically appropriate for the individual, the group health plan or issuer must cover the contraceptive product without cost sharing.
• A group health plan or issuer that uses a reasonable medical management technique with respect to multiple or similar services or products, as permitted by the ACA, must cover at least one service or product without cost sharing. The group health plan or issuer must defer to the determination of the attending provider and make available an exception process that is not unduly burdensome to the individual or the medical provider to obtain coverage of the contraceptive.
• Group health plans and issuers are required to provide coverage for fertility awareness-based methods without cost sharing. The recently updated Guidelines include instruction on fertility awareness-based methods, including lactation amenorrhea.
• Group health plans and issuers are required to cover FDA-approved emergency contraception that is available over-the-counter. Group health plans and issuers must cover levonorgestrel and ulipristal acetate when the product is prescribed by a medical provider. In addition, group health plans and issuers are encouraged to cover over-the-counter emergency contraception without a prescription.
• Health savings accounts (HSA), health flexible spending arrangements (FSA), and health reimbursement accounts are permitted to reimburse contractive coverage obtained without a prescription to the extent it is not paid or reimbursed by another group health plan or coverage. A health savings account can be used to reimburse individuals for qualified medical expenses that are not compensated by insurance or otherwise. If the contraceptive expense is paid or reimbursed by a group health plan or issuer, the contraceptive expense cannot be reimbursed by the HSA or FSA.
• A 12-month supply of contraceptives is encouraged to be covered by group health plans and issuers.
• A medical management technique adopted by a group health plan or issuer is reasonable depending on all of the relevant facts and circumstances. The FAQ provides the following as examples of unreasonable medical management techniques:
  • Denying coverage for all or specific brand name contraceptive coverage.
  • Requiring individuals to use other FDA-approved contraceptives within the same category prior to receiving the contraceptive product prescribed by the medical provider or requiring individuals to use other FDA-approved contraceptives in other categories prior to receiving the contraceptive product prescribed by the medical provider.
  • Imposing an age limit on contraceptive coverage rather than providing the benefit to all individuals of reproductive age.
• The Departments will consider a medical management technique adopted by a group health plan or issuer reasonable if the exceptions process is easily accessible, transparent, sufficiently expedient, and unduly burdensome. The FAQ provides the following as examples of reasonable medical management techniques:
  • Easily Accessible - The Plan document contains information relevant to the exception process, including how to access the process without initiating the internal claims and appeals procedures. 
  • Transparent – The information relevant to the exception process in included and prominently displayed in plan documents.
  • The Departments encourage group health plans and issuers to make the information available in a format and manner that is readily accessible (i.e., electronically).
• A group health plan or issuer is not permitted to require a participant, beneficiary, or enrollee to initiate the claims and appeals process to obtain an exception for contraceptive services.
• The Departments remind group health plans and issuers that the ACA preempts state law. If a state law prevents the application of the ACA, Health and Human Services (“HHS”) may initiate an investigation to determine whether the state is failing to enforce the ACA and if HHS determines the state has failed to enforce the ACA, HHS may issue a determination and require enforcement.
• The Departments will enforce the requirements of the ACA. The Department of Labor (“DOL”) will work to obtain broad corrections and may require the group health plan or issuer to provide notice to affected participants and beneficiaries. The Centers for Medicare and Medicaid Services (“CMS”) will require group health plans of state and local governments to revise plan documents, permit the resubmission of claims, and readjudicate denied claims. In addition, CMS may impose civil monetary penalties.

Employers should discuss design and other concerns with independent legal counsel.