Wagner Header

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.





Contact Info

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

300 Montgomery Street

Suite 600

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

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







April 28, 2016


 Health and Welfare Law Alert




Agencies Release ACA FAQ XXXI 




OL, HHS and IRS (the "Departments") have released FAQs About Affordable Care Act  Implementation Part XXXI ("FAQ XXXI").  Specifically, FAQ XXXI addresses: coverage of preventive services; rescissions; out-of-network emergency services; approved clinical trials; limitations on cost-sharing under the Affordable Care Act, the Mental Health Parity and Addiction Equity Act ("MHPAEA") and the Women's Health and Cancer Rights Act ("WHCRA"). 



Coverage of Preventive Services.  FAQ XXXI provides guidance on the coverage requirements for the following preventive services:


  • Colonoscopies.  When a colonoscopy is performed as a screening procedure, a group health plan may not impose cost sharing for bowel preparation medications. 


  • Contraceptives.  ACA requires group health plans to cover at least one item or service in all the FDA-approved contraceptive methods.  Prior ACA FAQs confirmed that group health plan sponsors could use medical management techniques to cover some versions of an item (e.g., generic drugs) without cost sharing while imposing cost sharing for more expensive options (e.g., brand-name drugs).  Nonetheless, group health plans must have an exception for anyone whose provider determines that the less-expensive option is medically inappropriate.  FAQ XXXI confirms that plan sponsors may develop and utilize a standard exception form (for contraceptive methods) for participants and beneficiaries to request such an exception. 


Rescission.  ACA generally prohibits a group health plan from retroactively cancelling an individual's coverage unless the individual commits fraud or intentionally misrepresents a material fact.  To demonstrate this rule, FAQ XXXI provides an example where a teacher who has a 10-month school year employment contract enrolls in, and pays the full premium amount for, group health coverage for 12 months. If the teacher submits her resignation at the end of the 12-month coverage period and did not commit fraud or intentionally misrepresent a material fact, the employer cannot retroactively terminate coverage back to the end of the 10-month period. 




Disclosure of Out-of-Network Payment Calculations.  ACA requires group health plans to provide a level of coverage for out-of-network emergency services that is comparable to what the plan would pay for in-network emergency services.  FAQ XXXI confirms that a group health plan must disclose how it calculated the out-of-network payment amount within 30 days of receiving a request from a participant or beneficiary and as part of the claims review process.
Clinical Trials.  Under ACA, a group health plan may not deny, limit or impose additional conditions on covering routine patient costs for items or services attendant to participation in an approved clinical trial.  FAQ XXXI confirms that: (i) such costs include items that the plan would cover outside of the clinical trial; and (ii) if the participant or beneficiary experiences complications from the clinical trial, any treatment required for the complications must be covered on the same basis as other conditions not related to clinical trials.




Out-of-Pocket Expenses/Limits and Reference-Based Pricing.  ACA generally requires non-grandfathered group health plans that use a referenced-based pricing structure to ensure that participants and beneficiaries have access to quality providers that will accept that price as payment in full.  FAQ XXXI confirms that where a plan does not offer adequate access to quality providers, any payment by a participant or beneficiary above the reference price must be counted toward the maximum out-of-pocket limits.






  • Medication-Assisted Treatment of Opioid  Addiction. FAQ XXXI confirms that Medication-Assisted Treatment for opioid addiction (e.g., methadone maintenance) is a substance abuse benefit that is subject to MHPAEA restrictions on cost-sharing and treatment limitations. 


  • Information about MHPAEA Compliance. FAQ XXXI confirms that a plan administrator must provide the following plan documents, upon receiving a request from an authorized representative, including the participant or beneficiary's treatment provider, to demonstrate the plan's MHPAEA compliance: 


o Summary Plan Description 


o Specific plan language regarding the imposition   of  non-quantitative treatment limitations ("NQTLs");
o The specific underlying processes, strategies, evidentiary standards, and other factors and evidence considered by the plan in determining that the NQTL will apply to the particular benefit at issue;
o Information on the application of the NQTL to any medical/surgical benefit in the benefit classification at issue; and
o Any analyses by the plan on how the NQTL complies with MHPAEA.




WHCRA. Post-mastectomy reconstruction services must include coverage for nipple and areola reconstruction, including regimentation to restore the physical appearance of the breast.


FAQ XXXI may be accessed at:




This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


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.