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New Preventive Care Regulations Expand Services Many Plans Must Cover – Including Contraceptives

Employee Benefits Law Alert John L. Barlament

New regulations issued on August 1, 2011 from three federal agencies will require "nongrandfathered" health plans to begin covering eight new "women's preventive health care services." Some of the new services that must be covered may be low-cost and not controversial (such as annual counseling for sexually transmitted infections). However, the new regulations also require coverage for certain contraceptive methods and counseling. This may be of concern to some employers, especially for employers with certain religious affiliations.

Background on Preventive Health Services. The health care reform law from last year (often called the Affordable Care Act or "ACA") required that most "nongrandfathered" health plans begin covering certain preventive health services, such as many vaccinations and well-baby visits. These preventive health services usually must be covered without imposing any copayments, coinsurance, deductibles or other cost-sharing requirements. Whether a plan is "grandfathered" or "nongrandfathered" is generally based on whether the plan has been significantly modified since the ACA was enacted. Many plans are likely to lose their "grandfathered" status over time, although they may not have lost that status yet.

Last year's preventive care rules state that various agencies can issue additional categories of "preventive health services" in the future. The new regulations from August 1, 2011 are an example of these additional preventive health services.

What is Covered Under New Regulations. The new regulations require the following women's preventive health services to be covered.

Type of Preventive Services U.S. Department of Health and Human Services ("HHS") Guidelines for Health Insurance Coverage Frequency
Contraceptive methods and counseling All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity. As prescribed.
Breastfeeding support, supplies, and counseling. Comprehensive lactation support and counseling, by a trained provider during pregnancy and/or in the postpartum period, and costs for renting breastfeeding equipment. In conjunction with each birth.
Screening for gestational diabetes. Screening for gestational diabetes. In pregnant women between 24 and 28 weeks of gestation and at the first prenatal visit for pregnant women identified to be at high risk for diabetes.
Human Papillomavirus testing. High-risk human papillomavirus DNA Testing in women with normal cytology results. Screening should begin at 30 years of age and should occur no more frequently than every three years.
Counseling for sexually transmitted infections. Counseling on sexually transmitted infections for all sexually active women. Annual.
Counseling and screening for human immune-deficiency virus. Counseling and screening for human immune-deficiency virus infection for all sexually active women. Annual.
Screening and counseling for interpersonal and domestic violence. Screening and counseling for interpersonal and domestic violence. Annual.
Well-woman visits. Well-woman preventive care visit annually for adult women to obtain the recommended preventive services that are age and developmentally appropriate, including preconception and prenatal care. This well-woman visit should, where appropriate, include other preventive services listed in this set of guidelines as well as other preventive services required to be covered under ACA Section 2713. Annual, although HHS recognizes that several visits may be needed to obtain all necessary recommended preventive services, depending on a woman's health status, health needs, and other risk factors.

Effective Date of Coverage. Affected health plans must begin covering these new women's preventive health services as of the first day of the first plan year beginning on or after August 1, 2012 (e.g., January 1, 2013 for a calendar year plan).

Exception for Certain Employers. The new regulations generally provide that certain "religious employers" do not need to provide coverage for contraceptive methods and counseling. (Religious employers are not exempt from the seven other newly-created women's preventive health services.)

The definition of "religious employer" seems to be fairly narrow. The definition may apply, in practice, only to churches or similar entities that primarily employ and serve people of the same religious belief. There are likely to be many other employers with a religious affiliation (such as many health care systems) that may be required to provide this coverage. These employers may have significant reservations about providing such coverage and may want to consider their options about the situation.

Will Men Benefit Also? The ACA requires that these preventive care benefits be provided "with respect to women." The new guidance also focuses solely on how these benefits apply to women - without discussing whether men might also receive the benefits. Some of the benefits are clearly inapplicable to men, such as screening for gestational diabetes. Others, however, seem to be "gender-neutral" and would benefit both men and women, such as counseling for sexually transmitted infections and counseling for domestic violence. Although the ACA likely would not require that such benefits be provided for men, other laws might require that these benefits be provided to men. For example, Title VII of the Civil Rights Act generally requires that health plans not discriminate on the basis of gender. Might Title VII or some other law require that a health plan provide comparable benefits to men? Unfortunately, the guidance from this week does not address this question.

Link to Further Guidance.

A list of the eight new services can be found here: http://www.hrsa.gov/womensguidelines/.

For more information contact the author of this alert, John Barlament, at (414) 277-5727 / john.barlament@quarles.com). You may also contact any of the following Quarles & Brady employee benefits attorneys: Marla Anderson at (414) 277-5453 / marla.anderson@quarles.com; Amy Ciepluch at (414) 277-5585 / amy.ciepluch@quarles.com; Sarah Fowles, at (414) 277-5287 / sarah.fowles@quarles.com; Angie Hubbell at (312) 715-5097 or angie.hubbell@quarles.com; Paul Jacobson at (414) 277-5631 / paul.jacobson@quarles.com; David Olson at (414) 277-5671 / david.olson@quarles.com; Robert Rothacker at (414) 277-5643 / robert.rothacker@quarles.com or your Quarles & Brady attorney.