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No one can say that the Departments of Health and Human Services, Labor and Treasury have not been diligent in getting us regulations on the first phase of requirements under the health care reform law.

No one can say that the Departments of Health and Human Services, Labor and Treasury have not been diligent in getting us regulations on the first phase of requirements under the health care reform law.[1] Since enactment of the law, the Departments have issued three sets of implementing regulations (they have also issued some other health care reform guidance and requests not included in this tally) and this past week issued their fourth set of regulations which address coverage of preventive care.

Under the health care reform law, non-grandfathered plans must provide preventive services on a first dollars basis (without any cost-sharing requirements – co-pays, deductibles, or co-insurance) beginning with the first plan year on or after September 23, 2010 (January 1, 2011 for calendar year plans). The regulations clarify what preventive services must be covered (called "recommended preventive services"), how cost-sharing applies when recommended preventive services are billed with an office visit, that there is no cost-sharing prohibition for out-of-network providers, and the timing for which coverage must be provided when guidelines change.

Recommended Preventive Services

A complete list of the preventive services that must be covered can be found at:

http://www.healthcare.gov/center/regulations/prevention/recommendations.html

In summary, the services that must be covered are:

• Evidence-based items or services that are rated A or B in the current recommendations of the United States Preventive Services Task Force.
• 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.
• For infants, children and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).
• For women, preventive care and screening provided for in guidelines supported by HRSA (not otherwise addressed by the recommendations of the Task Force). HHS is developing theses guidelines and expects to issue them no later than August 1, 2011.

Billed with Office Visits

If recommended preventive services are billed separately from an office visit, then the plan may impose cost-sharing with respect to the visit. However, if not billed separately and the primary purpose of the visit is delivery of the preventative service then the plan may not impose cost-sharing for the visit.

Out-of-Network Services

If a plan has a network of providers, it is not required to provide coverage for recommended preventive services delivered by an out-of-network provider. If covered, the plan may impose cost-sharing for out-of-network recommend preventive services.

Timing for Coverage

If a new recommendation or guideline is implemented, a plan does not have to provide the recommended preventive service until the first plan year beginning on or after the date that is one year after the new recommendation or guideline goes into effect. Therefore, plans may visit the website address above once a year to determine any additional recommended preventive services that must be covered under the plan without cost-sharing and determine services no longer required to be covered.

Why Should Grandfathered Plans Care?

Grandfathered plans do not have to provide recommended preventive services on a first dollar basis for as long as grandfathered plan status is maintained. For information on grandfathered plan status, please see our June 23, 2010 Legal Alert "Anticipated Health Care Reform Grandfathered Plan Regulations Released," available on our web site at: http://www.fordharrison.com/shownews.aspx?show=6300. However, employers with grandfathered plans should become familiar with the preventive care requirements to weigh the benefits of making changes to the plan against the compliance obligations for a resulting loss of grandfathered plan status.

Employer's Bottom Line:

Employers should discuss with their brokers, consultants, insurers or third party administrators, as applicable, any necessary changes to non-grandfathered plans before the next plan year to provide for recommended preventive services, adopt a corresponding plan amendment and timely issue a summary of material modification or new summary plan description to plan participants.

If you have any questions regarding this Alert, or would like additional details concerning health care reform, you can contact the author of this Alert, Penny C. Wofford, 864-699-1100, pwofford@fordharrison.com, any member of Ford & Harrison's Employee Benefits practice group or the Ford & Harrison attorney with whom you usually work.