Healthcare Reform Regulations on Coverage of Preventive Services

This is one of a continuing series of updates on recent developments in the law affecting labor rights and employee benefit plans.

The two statutes collectively referred to as the “Healthcare Reform Laws” or “Reform Laws” are the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act.

Continuing their flurry of activity in anticipation of the impending effective date of the new healthcare reform laws, the three agencies responsible for issuing guidance have released yet another set of regulations, which are scheduled for publication in the Federal Register on July 19, 2010. This time, the Departments of Health and Human Services (HHS), Treasury and Labor have released an 84-page oeuvre fleshing out the Healthcare Reform Laws’ required coverage of preventive care.

The Reform Laws generally require that recommended preventive services be covered without any cost-sharing (i.e., without any deductibles, copayments or other coinsurance). The regulations seek to clarify the circumstances in which a plan may and may not charge for office visits and other care that includes recommended preventive services. As stated in the regulations, the key factors in determining whether a plan may impose a charge for an office visit that includes recommended preventive services are whether the preventive services are billed separately from the office visit and, if not, the primary purpose of the visit. Thus, if the primary purpose for an office visit is for recommended preventive services and those services are not billed separately from the office visit itself, the plan may not impose any cost sharing on the participant. On the other hand, if the office visit is billed separately, or if the recommended preventive services were provided during an office visit that was primarily for some other purpose, cost sharing may be imposed for the office visit.

For example, if an adult participant who visits a physician for stomach pain also receives a blood pressure screening, which is a recommended preventive service for that individual and is not billed separately, the plan may impose cost-sharing for the office visit because the primary purpose of the visit was not for the blood pressure screening. By contrast, if a covered child visits an in-network pediatrician for an annual physical exam that satisfies the requirements for a recommended preventive service, but also receives additional services that do not satisfy those requirements, the plan may not impose cost-sharing for the office visit because the primary purpose of the visit was the recommended exam.

Furthermore, if a plan has a provider network, it does not even need to cover recommended preventive services provided by a non-network provider. Additionally, although a plan is free to cover preventive services that are not on the list of recommended preventive services, such coverage may be subject to cost-sharing.

The regulations specify that the recommended preventive services (i.e., the preventive services that are subject to the new requirements of the Healthcare Reform Laws) include:

• Evidence-based items or services that have in effect a rating of A or B in the current recommendations of the United States Preventive Services Task Force (Task Force) with respect to the individual involved.

• Routine Immunizations for children, adolescents, and adults recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved.

• With respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).

• With respect to women, evidence-informed preventive care and screening provided for in comprehensive guidelines supported by HRSA (not otherwise addressed by the recommendations of the Task Force). HHS is developing these guidelines and promises to issue them no later than August 1, 2011.

In addition to childhood immunizations, recommended preventive services include such services as blood pressure and cholesterol screening, diabetes screening for hypertensive patients, various cancer and sexually transmitted infection screenings, genetic testing for the BRCA gene, adolescent depression screening, lead testing, autism testing, and oral health screening and counseling related to aspirin use, tobacco cessation, and obesity. A complete listing of recommended preventive services is available at: http://www.HealthCare.gov/center/regulations/prevention.html.

A preventive service does not, however, need to be covered until the first day of the first plan year that begins one year after the service become recommended. For example, the recommendation that children age 6 and older be screened for obesity only became effective on January 31, 2010. For a calendar year plan, that means that such screenings do not need to be treated as recommended preventive services until January 1, 2012. Preventive services that cease to be recommended also cease to be subject to this coverage requirement (although they may still be subject to the requirement that participants be given 60 days advance notice before any change in coverage). The one exception is that breast cancer screenings must continue to be treated as recommended preventive services based upon the guidelines in effect prior to November 2009, notwithstanding the partial withdrawal of that recommendation.

The regulations also deal with how, when and where recommended preventive services must be provided in order to be subject to the Reform Laws’ requirements. If the recommendations or guidelines specify the frequency, method, treatment or setting of the recommended preventive service, then a plan must cover services that accord with those recommendations. If, however, the recommendation is silent on one or more of these issues, then a plan is permitted to use “reasonable medical management techniques” to determine any coverage limitations based upon the missing criteria.

The requirements for coverage of recommended preventive services are generally effective for plan years beginning on or after September 23, 2010. Grandfathered plans, however, are not subject to these requirements.

As with the other regulations under the Healthcare Reform Laws, these are designated as interim-final regulations, and are open for comment for a 60-day period. Based on the scheduled publication date of July 19, this comment period will close on September 17, 2010.

As we close in on the effective date of the Healthcare Reform Laws, we will continue to keep you advised as matters develop. Please contact us if you have questions.

Mooney, Green, Baker & Saindon, P.C.