Preventive Care Articles Updates

Updates to Preventive Services Requirements Under the ACA

On October 21st, the Departments of Health and Human Services, Labor and Treasury released a proposed rule that expands the current Affordable Care Act mandate requiring coverage of preventive services by non-grandfathered plans without cost sharing. The proposed rule clarifies previous guidance on use of "reasonable medical management techniques" by health plans and expands coverage of contraceptives to include over-the-counter items.

Under current guidance, plans have been able to use "reasonable medical management techniques" to define the frequency, method, treatment, or setting for coverage of a recommended preventive service, to the extent that these are not specified in the recommendation. In response to complaints the Departments have received regarding the reasonableness of some plans techniques, the proposed rule makes it clear that a plan's medical management techniques are considered "reasonable" if there is a clear, transparent exceptions process that would allow a participant to receive a service in a manner that is medically appropriate for that individual, as determined by the participant's doctor.

This proposed rule would also require plans to cover FDA recommended over-the-counter contraceptive items such as condoms, spermicide, emergency contraception, and the over-the-counter (OTC) birth control pill without a prescription at no cost to participants. The availability of this coverage would be required to be communicated to participants through a plan's Transparency in Coverage self-service cost sharing tool, with an explanation that over-the-counter contraceptive items are covered without cost sharing and without a prescription, and a link and phone number for more information about the plan's contraceptive coverage.

There is a 60-day public comment period on this proposed rule, and if approved, it would go into effect in 2025, to be applicable for plan years that begin on or after January 1, 2026. Depending on the approach the new Presidential Administration takes in 2025, this could be reversed or overturned.

More information can be found in the Departments' Fact Sheet.

IRS Guidance Expands Preventive Services List for High Deductible Health Plans

On October 17th, 2024, the IRS issued a notice that expands and clarifies the list of preventive services that can be covered by an HSA-qualified High Deductible Health Plan (HDHPs) prior to the deductible being met. In general, an HDHP plan will lose its HSA qualified status if it covers any benefits for a participant before that participant has met the required minimum deductible. However, the IRS has issued guidance in the past that includes a list of preventive services that are allowed to be covered without cost sharing before the deductible is met.

Notice 2024-75 expands this list of preventive services to include over-the counter oral contraceptives (including emergency contraceptives) and male condoms effective for plan years beginning on or after December 30, 2022. The notice also clarifies that all types of breast cancer screenings (including MRIs or ultrasounds) are included on this list as well as continuous glucose monitors for individuals diagnosed with diabetes and certain insulin products, regardless of whether it is prescribed to treat someone diagnosed with diabetes, or for the purpose of preventing the exacerbation of diabetes or the development of a secondary condition.

On the same day, the IRS issued Notice 2024-71 which provides that it will treat amounts that participants pay for condoms as "medical care" under Section 213(d), meaning condoms can be paid or reimbursed under an FSA, HSA, or MSA.

Plans need to keep in mind that these changes may require plan amendments and changes to other communications to participants.