As sponsors of non-grandfathered plans race to incorporate the health care reform legislation’s new preventive care rules before the 2011 plan year begins, new final interim rules from the Departments of Labor, Treasury, and Health and Human Services have shed light on the issues involved in implementing this new market reform. Though several important questions remain, the rules – published in the July 19 Federal Register – go a long way toward explaining some of the practical issues associated with complying with new Section 2713 of the Public Health Service Act.
Preventive Care: A Review
The new rules reiterate the Patient Protection and Affordable Care Act’s (PPACA) general requirement that plans offer coverage for certain “preventive” care and services without cost-sharing. Both the PPACA and the new rules link to three government clearinghouses that publish recommendations and guidelines for preventive care and require plans to provide in-network coverage for:
- Evidence-based items or services rated A or B in the United States Preventive Services Task Force recommendations;
- Immunizations for routine use in children, adolescents, and adults that are recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; and
- Preventive care and screenings for women, infants, children, and adolescents set forth in comprehensive guidelines supported by the Health Resources and Services Administration.
Copies of these guidelines are reprinted in the rules, as well as online here.
Requirement Extends To In-Network Coverage Only
The new rules clarify that the preventive care requirement extends to in-network coverage only. Plans remain free to impose cost-sharing on out-of-network preventive services, or even to exclude coverage for out-of-network preventive services. Plans also retain discretion to offer coverage for – or impose cost-sharing on – preventive services that do not appear in the agency recommendations and guidelines listed above.
The new rules also explain how the “minimum interval” period mandated by the PPACA will operate. Recognizing that the agency recommendations and guidelines listed above will be continuously updated as time goes on, the PPACA orders the Secretary of Health and Human Services to establish a “minimum interval” – which is essentially a buffer period between the time that a new preventive recommendation is approved and the date on which plans must offer coverage consistent with that item of care.
Under the rules, recommendations passed on or after September 23, 2009, need not be incorporated into plans until the first day of the first plan year following a one-year waiting period. To illustrate, let’s look at the Preventive Services Task Force’s new recommendation regarding counseling and screening for childhood obesity. This recommendation became effective on January 31, 2010. Therefore, according to the timetable outlined in the rules, plans will have to cover this preventive service on the first day of the first plan year that begins on or after January 31, 2011 (i.e., one year after the recommendation was adopted).
Even with this waiting period, plan sponsors will be required to review – and possibly amend – their list of covered preventive service items annually. This means that plan sponsors or the administrative services firms they hire will need to keep an eye on the preventive care requirements as they evolve.
A cursory review of the preventive care recommendations reveals that, in many cases, it is not immediately clear how plans should implement coverage consistent with the preventive care guidelines. For example, the Preventive Services Task Force recommends that pregnant women take a folic acid supplement. However, neither the Task Force guidelines nor the new rules explain the extent to which the plans should provide coverage for folic acid supplements.
With respect to these kinds of preventive recommendations that fail to specify the frequency, method, treatment, or setting for the delivery of preventive services, plans may use reasonable “medical management” techniques to develop appropriate coverage limitations. Unfortunately, “medical management” is not defined in the rules, though the preamble to the rules explains that plans may rely on “established techniques and the relevant evidence base.” So, while plan sponsors can be assured of their right to impose coverage limitations, the limited guidance on this topic may leave them wondering how to actually do so.
Just Put It On My Bill
From a practical standpoint, preventive care is often administered alongside other non-preventive services during office visits. The rules include new restrictions on when cost-sharing can be imposed on an office visit that includes preventive care. It depends on whether the preventive services are billed separately from the rest of the office visit:
- If the preventive service is billed separately from the office visit, cost-sharing may be imposed on the office visit, but not the preventive service.
- If the preventive service is not billed separately, the results will depend on the “primary purpose” of the office visit:
- If the primary purpose was the delivery of the preventive service, cost-sharing is not allowed.
- If the primary purpose was not delivery of the preventive service, then cost-sharing is permitted.
Unfortunately, the rules do not indicate who is to determine the primary purpose of the office visit or how this determination is to be made.
The last, and arguably most important, question remaining is deceptively simple: how should plan sponsors incorporate these requirements into their plan documents and summary plan descriptions?
Most of the preventive care guidelines and recommendations are presented in complex chart form or technical medical language, which may be all but indecipherable for plan sponsors – let alone plan participants. This leaves plan sponsors wondering how to document these new preventive services in a way that is clear and accessible to the plan participants. Translating the agency recommendations into plain English is one option, but that would be a difficult task and one best approached with the input of medical professionals. On the other hand, simply referring participants to the recommendations and guidance posted online is similarly troublesome in light of the one-year buffer period for new preventive services; participants may see new recommendations and assume that their plan covers that service immediately.
Until further guidance is issued, plan sponsors will have to decide the best way to craft plan language that puts the participants on notice of the newly-covered preventive care and services without sacrificing clarity in the process.