Mandate Requiring Coverage of Women's Preventive Health Care Services Goes Into Effect August 1, 2012
The health care reform laws require non-grandfathered group health plans and individual policies to cover women’s preventive health care services (such as well-woman visits, breastfeeding support, domestic violence screening and contraceptives) without charging a copayment, a deductible or coinsurance for plan or policy years beginning on or after August 1, 2012 (January 1, 2013 for calendar year plans). These preventive health care services supplement the preventive health care services already mandated by the health care reform laws that went into effect for individual policies and non-grandfathered group health plans for plan or policy years beginning on or after September 23, 2010. For more information on the existing preventive care mandates, see our prior client alert here.
COVERAGE GUIDELINES: The new preventive care guidelines for women cover the following health services:
- Well-woman visits – Includes an annual well-woman preventive care visit for adults to obtain the recommended preventive services that are age and developmentally appropriate, including preconception and prenatal care (additional visits must be covered if necessary to obtain all recommended preventive services based on risk factors and health status).
- Gestational diabetes screening – Screening for women 24-28 weeks pregnant, and those at high risk of developing gestational diabetes.
- Human papillomavirus (HPV) DNA testing for women age 30 and older – Women who are age 30 or older will have access to high-risk HPV DNA testing every three years, regardless of pap smear results.
- Sexually transmitted infection (STI) counseling – Sexually active women will have access to annual counseling on STIs.
- Human immunodeficiency virus (HIV) screening and counseling – Sexually active women will have access to annual screening and counseling on HIV infections.
- FDA-approved contraception methods and contraceptive counseling – Women will have access to all FDA-approved contraceptive methods, sterilization procedures, patient education and counseling. These recommendations do not include abortifacient drugs.
- Breastfeeding support, supplies and counseling – Pregnant and postpartum women will have access to comprehensive lactation support and counseling from trained providers, as well as costs for renting breastfeeding equipment.
- Domestic violence screening and counseling – Screening and counseling for interpersonal and domestic violence.
According to the U.S. Department of Health and Human Services (HHS), group health plans may use reasonable medical management techniques for women’s preventive care to determine any coverage limitations when the applicable recommendations or guidelines do not specify the frequency, method, treatment or setting for a covered service. In addition, plans may use reasonable medical management techniques to control costs, for example, by continuing to charge cost-sharing for brand-name drugs if a safe and effective generic version is available and requiring cost-sharing for preventive services received from out-of-network providers.
RELIGIOUS EMPLOYER EXEMPTION: “Religious employers” are exempt under the final regulations from the requirement to cover contraceptive services; however, the narrow definition of religious employer has generated protests from many religiously-affiliated organizations such as hospitals and universities that do not qualify. The exemption is primarily aimed at churches, synagogues and other houses of worship and to qualify for the exemption the organization must:
- have the inculcation of religious values as its purpose;
- primarily serve and employ persons sharing the organization’s religious beliefs; and
- be a nonprofit described in Internal Revenue Code Sections 6033(a)(1), 6033(a)(3)(A)(i) or 6033(a)(3)(A)(iii).
Although not exempt from the requirement, nonprofit employers who for religious reasons do not currently provide contraceptives under their group health plans have an additional year to comply with the contraceptive mandate until plan or policy years on or after August 1, 2013. Employers wishing to take advantage of the extended deadline must on or before the first day of the first plan year beginning on or after August 1, 2012, provide a certification of qualification for the exemption and a notice to employees that no contraceptive coverage is available. A sample certification and notice is provided by the HHS here.
Simultaneous with the issuance of the final regulations on February 10, 2012, President Obama proposed a compromise to exempt all religiously-affiliated employers from the contraceptive mandate and require insurers of their plans to provide free contraceptives directly to covered participants. A similar compromise is being developed for making contraceptives available to participants covered under self-insured group health plans of exempt employers. Despite the compromise promised by the President, 43 Catholic universities, dioceses, schools, hospitals, social service agencies and other religiously affiliated organizations filed a dozen different lawsuits on May 21, 2012, challenging the contraceptive mandate on religious freedom grounds under the First Amendment creating even more uncertainty for religiously-affiliated employers in determining how to comply with the new mandate. Affected nonprofit employers will need to stay tuned for future guidance.
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