The Wagner Law Group
Wagner Law Group, A Professional Corporation, is a nationally
recognized ERISA & employee benefits, estate planning,
employment, labor & human resources practice.
in 1996, The Wagner Law Group has 22 attorneys engaged
exclusively in employee benefits, estate planning and
employment law. Six of our attorneys are AV rated by
Martindale-Hubbell as having very high to preeminent legal abilities
and ethical standards. The firm is among the largest ERISA boutiques
in the country. Our practice is national in scope, with clients in
more than 40 states and several foreign countries.
Wagner Law Group
Fax: (561) 293-3591
7108 Fairway Drive
Palm Beach Gardens, FL 33418
East Kennedy Boulevard
Tampa, FL 33602
Francisco, CA 94104
100 South 4th Street, Suite 550
St. Louis, MO 63102
October 30, 2015
Health and Welfare Law
ACA FAQs XXIX Address Coverage
and IRS have released FAQs About Affordable Care Act (ACA)
Implementation Part XXIX ("FAQ XXIX"). FAQ XXIX
provides clarification of the no-cost preventive services required
under ACA for non-grandfathered group health plans, as well as
implementation of the Mental Health Parity and Addiction Equity Act
of 2008 ("MHPAEA"), as amended by ACA.
Background. ACA requires non-grandfathered group
health plans to cover the following preventive services without cost
- Items and
services given an "A" or "B" rating by the
United States Preventive Services Task Force
("USPSTF") with respect to the individual involved;
as recommended by the Advisory Committee on Immunization
Practices of the Centers for Disease Control;
preventive care and screenings as recommended by Health
Resources and Services Administration ("HRSA");
preventive care and screenings as recommended by HRSA.
(The HRSA guidelines specifically require coverage of all
FDA-approved contraceptive methods, sterilization procedures,
and patient education and counseling for all women with
reproductive capacity, as prescribed by a health care
If the relevant preventive services
recommendation or guideline does not specify the frequency, method,
treatment, or setting for a recommended preventive service, the group
health plan is allowed to use reasonable medical management
techniques to determine coverage limitations.
FAQ XXIX provides the following clarification on the responsibilities
of group health plans to cover the following preventive services:
- Group health
plans must provide participants with a list of the lactation
counseling providers within the network.
- If a
group health plan does not have in-network lactation counseling
providers, it must cover these services, without cost sharing,
when provided by an out-of-network provider.
- When a state
does not license lactation counseling providers, but a group
health plan only covers services received from providers
licensed by the state, the plan must still cover lactation
counseling, without cost sharing, subject to reasonable medical
management. The plan could require that the provider be
acting subject to a more general license, such as a registered
- A group
health plan must provide this coverage without cost sharing,
regardless of whether the service is performed on an-inpatient
or out-patient basis.
group health plan may not require individuals to obtain breastfeeding
equipment within a specified time period in order for it to be
covered without cost sharing.
Weight Management Services.
non-grandfathered group health plan may not contain a general
exclusion for weight management services for adult
obesity. Specifically, a plan must cover, without cost
sharing, obesity screening in adults.
- A plan must
also cover recommended intensive, multicomponent, behavioral
interventions for weight management for adults who qualify as
being obese (i.e., have a body mass index of 30 kg/m2 or
higher). This would include group and individual sessions,
behavioral management activities, improving diet or nutrition
and increasing physical activity, and other objectives.
- Where a
colonoscopy is scheduled and performed as a screening procedure,
a group health plan may not impose cost sharing for any
specialist consultation required prior to the screening
- Also, after
a colonoscopy is performed, a plan must also cover any pathology
exam on a polyp biopsy without cost sharing.
The Departments will apply both of these colonoscopy
requirements prospectively for plan years beginning on or
after December 22, 2015.
- Women found
to be at increased risk, based on family history, of having a
potentially harmful gene mutation that increases their risk for
breast cancer, must receive coverage without cost sharing for
genetic counseling, and, if indicated, testing for harmful BRCA
requirement applies to women who have never had breast or other
cancer, but also applies to those who have previously had
cancer, so long as they do not currently have symptoms and are
not currently undergoing treatment for breast, ovarian, tubal,
or peritoneal cancer. (Current symptoms or treatment would
take the services outside the scope of preventive
services. It is only preventive services that are required
to be provided without cost-sharing.)
FAQ XXIX clarifies the wellness rules as follows:
incentives are just as much subject to the rules and limitations
of the wellness regulations as other types of incentives or
penalties. Specific examples given in this guidance are
gift cards, thermoses and sports gear.
FAQ XXIX provides the following guidance with
respect to group health plans' compliance with MHPAEA, and ERISA
- If a
group health plan denies a plan participant's prior
authorization for any particular mental health treatment, after
determining that the stay is not medically necessary, the plan
administrator may not refuse to provide the participant a copy
of its medical necessity criteria for both mental
health/substance abuse and medical/surgical services. The
example given is a 30-day inpatient stay to treat anorexia, and
the guidance is set out as an interpretation of MHPAEA, but the
rule is the same for any treatment for any condition.
the guidance makes clear that the criteria cannot be denied on
grounds of having commercial value, or of being proprietary.
- It is
permissible for a plan to offer a summary description in
laymen's terms, but that is optional and in any event does not
substitute for the requirement to provide the official criteria
FAQ XXIX may be accessed at: http://www.dol.gov/ebsa/pdf/faq-aca29.pdf