Agencies Broadly Expand Required Preventive Services for Women Under Health Care Reform

On Monday Treasury, Labor, and HHS released an amendment to the interim final regulations on preventive care. This amendment adopts new standards that broadly expand required preventive services for women under health care reform.

As discussed in prior posts, health care reform requires that non-grandfathered health plans cover recommended preventive services (such as mammograms, colonoscopies, blood pressure checks, and childhood immunizations) without any cost sharing. Treasury, Labor, and HHS issued interim final regulations implementing the preventive health services requirements in July 2010, applicable for the first plan year beginning on or after September 23, 2010. Under this week’s revised regulations, non-grandfathered health plans must also provide, among other services, well-women visits, breastfeeding support and supplies, domestic violence screening and counseling, and contraception without charging a copayment, co-insurance, or a deductible. These new requirements apply beginning with the first plan year on or after August 1, 2012 (January 1, 2013, for calendar-year plans).

Despite these rather specific constraints, issuers and plan sponsors will be able to maintain some control over how they cover preventive care. For example, plans may charge copayments for brand-name drugs if an equally safe and effective generic version is available, HHS stated in a press release accompanying the amended regulations. This type of flexibility is built into the regulations through provisions that permit a plan or issuer to use reasonable medical management techniques to control costs and promote efficient delivery of care.

The amended regulations also exempt certain religious employers from the requirement to cover contraceptive services. For purposes of the exemption, a religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code (referring to churches, their integrated auxiliaries, conventions or associations of churches, and exclusively religious activities of any religious order). According to the agencies, this definition is based on church exemptions found in many states that already require coverage of contraception. The agencies are looking for comments on this definition and possible alternatives, such as those developed under the Code.

Comments on this amendment are due by September 30, 2011.