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The Wagner Law Group

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established 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.





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The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
100 South 4th Street, Suite 550
St. Louis, MO  63102 







October 30, 2015


 Health and Welfare Law Alert




ACA FAQs XXIX Address Coverage of

Preventive Services





DOL, HHS 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 sharing:


  • Items and services given an "A" or "B" rating by the United States Preventive Services Task Force ("USPSTF") with respect to the individual involved;
  • Immunizations, as recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control;
  • Children's preventive care and screenings as recommended by Health Resources and Services Administration ("HRSA");
  • Women's 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 provider.) 


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:





Lactation Counseling


  • 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 nurse.
  • 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.
  •  A 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


  • A 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 procedure. 
  • Also, after a colonoscopy is performed, a plan must also cover any pathology exam on a polyp biopsy without cost sharing. 
  • NOTE: The Departments will apply both of these colonoscopy requirements  prospectively for plan years beginning on or after December 22, 2015.


Breast Cancer Testing


  • 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 mutations. 
  • This 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:


  • In-kind 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 generally:


  •  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.
  • Specifically, 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 when requested.

FAQ XXIX may be accessed at:






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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.