“Patient’s Bill of Rights”: Government releases regulations on several patient protection provisions

The Departments of Health and Human Services (HHS), Labor, and Treasury issued regulations to implement a new “Patient’s Bill of Rights” under the Patient Protection and Affordable Care Act (PPACA) aimed at helping children with pre-existing conditions gain coverage and keep it, protecting all Americans’ choice of doctors and ending lifetime limits on the care consumers may receive.

These new protections apply to nearly all individual and group health insurance plans. Further guidelines defining “essential benefits” are still to come and may impact implementation of the provisions described below. The information in this Reform Alert includes highlights of the Patient’s Bill of Rights regulations. You view the complete regulations visit www.healthcare.gov. 

Pre-existing Condition Exclusions:

·         Individual and group plans that choose not to cover specific conditions that are not required to be covered by PPACA, such as coverage for autism, may still choose to deny coverage for those conditions for all members.

·         Plans also cannot impose waiting periods for individuals or group members to receive coverage for pre-existing conditions. This applies to people under age 19 for plan years beginning on or after Sept. 23, 2010 and to everyone for plan years beginning on or after Jan. 1, 2014.

·         This provision does not apply to grandfathered individual plans, those in existence prior to Mar. 23, 2010.

Rescissions:

·         The regulations define a rescission as a cancellation or discontinuation of coverage that has a retroactive effect. In other words, rescissions that treat a policy as void from the time of enrollment or that void benefits paid up to a year before the cancellation are prohibited for individual and group members, except in two circumstances.

·         Rescissions are allowed in cases of fraud or intentional misrepresentation of material facts.

·         Plans can cancel or choose not to renew policies:

o    Due to nonpayment of premiums

o    When an insurer stops offering a specific product

o    When an insurer moves out of the geographic area

o    When individuals or employers move out of the geographic market

·         Retroactive cancellation for nonpayment of premiums is not considered a “rescission” under the law and is permissible.

·         A cancellation or discontinuance of coverage that only affects future coverage and claims is not a rescission.

·         The law applies whether the rescission applies to a single individual, an individual covered by a family policy or an entire group of individuals.

·         If an individual or group omits certain information that constitutes fraud, plans can rescind coverage.

·         Plans must provide at least 30 calendar days notice to an individual before rescinding coverage. Notices must provide individuals the opportunity to contest the rescission or to look for alternative coverage as appropriate.

Annual Dollar Limits:

·         “Essential health benefits” will be defined in future regulations.

·         In the interim, HHS will take into account good faith efforts to comply with a reasonable interpretation of the term “essential health benefits,” and group health plans must apply this definition consistently.

·         The regulation does not provide any information or prohibition on non-dollar limits, such as limits on frequency of doctor visits for certain conditions.

·         Plans may exclude all benefits for a specific condition and not be in violation of the annual and lifetime limit provision of PPACA. However, if any benefits are provided for a condition, the requirements of the provision apply.

·         Before Jan. 1, 2014, restricted annual dollar limits on essential benefits are permitted. There is a three-year phase out of the restricted annual limits on “essential health benefits.” The lowest annual limits plans may apply are:

o    $750,000 for plan years beginning from Sept. 23, 2010 to Sept. 22, 2011

o    $1.25 million for plan years beginning from Sept. 23, 2011 to Sept. 22, 2012

o    $2 million for plan years beginning from Sept. 23, 2012 to Dec. 31, 2013.

·         Minimum annual limits apply on an individual by individual basis (not family)

·         Only essential benefits are counted against the restricted annual limits. Benefits which are not essential benefits cannot be counted against the restricted annual limit amount.

·         HHS may waive requirements for annual limits if compliance would result in significant decrease in access to benefits or significant increase in premiums. HHS will be issuing additional regulations relating to waivers and applications.

·         This provision does not apply to grandfathered individual plans.

Lifetime Dollar Limits:

·         Starting with plan years beginning on or after Sept. 23, 2010, lifetime limits are no longer allowed for “essential health benefits.”

·         If an individual lost coverage due to reaching a lifetime limit, they must be allowed to re-enroll via an open-enrollment period.

o    This regulation does not apply to individuals who reached a lifetime limit while covered by a contract that was not renewed or is no longer in effect.

o    It does apply to family members who lost coverage due to reaching a lifetime limit if other members of the family are still covered by an active policy.

o    Plans must notify these individuals how and when they are eligible to re-enroll.

o    The open enrollment opportunity must occur no later than the first day of the first plan year beginning on or after Sept. 23, 2010.

o    Coverage must start no later than the first day of the first plan year beginning on or after Sept. 23, 2010.

·         This applies to all plans in all market segments, new or grandfathered.

Choice of Health Care Professional:

·         The regulation outlines requirements about how plan members can choose primary care providers, including the ability to choose pediatricians as primary care providers for children and required access to obstetric and gynecological care.

·         This regulation only applies to plans that have networks of providers.

·         If plans require that members choose a primary care provider, the plan must provide notice that:

o    Any participating primary care provider who is available to accept the member or beneficiary can be designated.

o    Any participating physician specializing in pediatrics can be designated as the primary care provider for a child.

o    Plans may not require authorization or referral for obstetrical or gynecological care by in-network health care professionals specializing in obstetrics or gynecology.

·         This does not apply to grandfathered plans.

Choice of Primary Care Provider:

·         Plans that require members to choose a primary care provider must allow those members to choose any primary care provider who is available to accept the member.

Choice of Pediatrician as Primary Care Provider for a Child:

·         Plans that require members to choose a primary care provider must allow members to choose any participating provider specializing in pediatrics as the primary care provider for a child as long as the provider is available to accept the child.

·         The requirement to allow members to choose a pediatrician as a primary care provider for a child does not affect the general terms of insurance coverage regarding pediatric care.

o    For example, if a plan does not cover treatment for food allergies, the plan does not have to pay for any treatment for food allergies even if the designated pediatrician referred the child for food allergy treatment.

·         This does not apply to grandfathered plans.

Access to Obstetric and Gynecological Care:

·         Plans that provide coverage for obstetrical or gynecological care that require members to choose a primary care provider must allow female members seeking obstetrical or gynecological care to see in-network providers specializing in obstetrical or gynecological care without a referral or authorization.

·         As defined by the regulation, a health care professional who specializes in obstetrics or gynecology is any individual who is authorized under applicable state law to provide obstetrical or gynecological care. This is not limited to physicians.

·         Under the direct access provision, a woman will not need to obtain a specialist referral to see an OB/GYN. However, the OB/GYN is required to follow the plan’s policies on referrals to other providers and prior authorizations for services to be performed by them. In other words, a plan may not impose a preauthorization requirement in order for a woman to see an OB/GYN but may require preauthorization for additional services or referrals. So for example, the health plan can require prior authorization before providing benefits for specific procedures such as uterine fibroid embolization. The plan requirement for prior authorization before providing benefits for uterine fibroid embolization does not violate the requirements of the regulations because, although the prior authorization requirement applies to obstetrical services, it does not restrict access to any providers specializing in obstetrics or gynecology.

·         This does not apply to grandfathered plans.

Coverage of Emergency Services

·         Plans that provide any benefits for emergency services in hospital emergency departments must:

o    Provide coverage without requiring prior authorization, even if the services are provided out of network.

o    Cover emergency services for both in-network and out-of-network providers.

o    May not charge members more for out-of-network emergency services than for in-network emergency services.

·         Cost sharing in the form of a copayment or co-insurance for out-of-network emergency services cannot exceed cost sharing for in-network emergency services.

·         An out-of-network emergency services provider can bill patients for the difference between the providers’ charges and the amount collected from the plan and from the patient in the form of copayment or co-insurance.

·         In order to ensure that a “reasonable amount” is paid to out-of-network emergency services providers in order to limit additional costs for members, plans are required to pay an amount equal to the greatest of the following:

o    The amount negotiated with in-network providers for the emergency service furnished minus patient cost sharing.

o    The amount for the emergency service plans generally pay for out-of-network services minus the coinsurance or copayment amount the member would pay for in-network services.

o    The amount that would be paid under Medicare for the emergency service not including any cost sharing a Medicare member would pay.

·         Cost sharing requirements that members pay, such as deductibles or out-of-pocket maximums, may only apply for out-of-network emergency services in the same way they generally apply for all out-of-network services.

o    Deductibles can only apply for out-of-network emergency services if they are part of an overall out-of-network deductible.

o    If maximum out-of-pocket costs generally apply for out-of-network services, those out-of-pocket maximum costs must apply to out-of-network emergency services.

o    Insurers are allowed to apply lower cost-sharing amounts for out-of-network emergency services than those generally applied for out-of-network services.

·         This does not apply to grandfathered plans.

Regulations released for immunizations and preventive coverage with no cost-sharing

The Departments of Health and Human Services (HHS), Labor, and Treasury issued new Patient Protection and Affordable Care Act (PPACA) regulations on July 14, 2010, requiring that private health plans cover evidence-based preventive services and immunization with no cost-sharing. These requirements only apply to services provided by in-network providers.

The regulations, which are available on the HHS health care reform website, state that preventive coverage, such as recommended vaccinations, health screenings and children’s wellness visits, must be covered for all new health plans starting with plan years beginning on or after Sept. 23, 2010..

Services that must be covered with no cost-sharing include:

Evidence-based preventive services: The U.S. Preventive Services Task Force (USPSTF), an independent panel of experts, rates preventive coverage based on scientific evidence documenting their benefits, including preventive services with a “grade” of A or B, such as:

·         Certain screenings for cancer

·         Vitamin deficiencies during pregnancy

·         Diabetes

·         High cholesterol

·         High blood pressure

·         Depression

·         Counseling for tobacco cessation

Routine immunizations: Health plans will cover a set of standard vaccines recommended by the Advisory Committee on Immunization Practices (ACIP) for routine use ranging from routine childhood immunizations to periodic tetanus shots for adults.

Prevention for children: Health plans will cover preventive care for children up to age 21 described in guidelines from the Health Resources and Services Administration (HRSA) and the American Academy of Pediatrics, including:

·         Regular pediatrician visits

·         Vision and hearing screening

·         Developmental assessments

·         Immunizations and screening

·         Counseling to address obesity

Prevention for women: Health plans will cover preventive care and screening provided to women according to guidelines supported by HRSA that are not otherwise addressed by the USPSTF recommendations. HHS is developing further guidance on this requirement, which it expects to issue by
Aug. 1, 2011.

When new services are added to the recommendations, health plans will be required to cover the services for plan years that begin one year after the date of the new recommendation.

Specifics about cost-sharing:

Cost-sharing, such as copayments, coinsurance or deductibles, for in-network provider office visits may be charged, depending on how providers bill.

·         If it the preventive service, item or immunization is billed separately from the office visit, cost-sharing may be applied to the visit but not to the preventive service, item or immunization.

·         If the primary purpose of the visit is to receive recommended preventive services, items or immunizations, and they are not billed separately, the member may not be charged cost-sharing for the visit.

·         If the primary purpose of the visit is for anything other than to receive preventive services, items or immunization, the member may be charged for the office visit, even if a preventive service or immunization is provided.

·         Optional preventive services, preventive services related to, but not included in the USPSTF, ACIP or HRSA list of recommendations, and services that have been removed from these lists may be provided with cost-sharing.

·         Preventive services provided by out-of-network providers do not have to be covered. If they are covered, they do not have to be covered with no cost-sharing.

Preventive Services Covered under the Affordable Care Act

 source: (http://www.healthcare.gov/law/about/provisions/services/lists.html)

If you have a new health insurance plan or insurance policy beginning on or after September 23, 2010, the following  preventive services  preventive services
Routine health care that includes screenings, check-ups, and patient counseling to prevent illnesses, disease, or other health problems.

must be covered without your having to pay a copayment  copayment
A flat dollar amount you must pay for a covered service. For example, you may have to pay a copayment5 copayment for each covered visit to a primary care doctor.

or coinsurance or meet your deductible, when these services are delivered by a network provider. 

Covered Preventive Services for Adults

·         Abdominal Aortic Aneurysm one-time screening for men of specified ages who have ever smoked

·         Alcohol Misuse screening and counseling

·         Aspirin use for men and women of certain ages

·         Blood Pressure screening for all adults

·         Cholesterol screening for adults of certain ages or at higher risk

·         Colorectal Cancer screening for adults over 50

·         Depression screening for adults

·         Type 2 Diabetes screening for adults with high blood pressure

·         Diet counseling for adults at higher risk for chronic disease

·         HIV screening for all adults at higher risk

·         Immunization vaccines for adults--doses, recommended ages, and recommended populations vary:

o    Hepatitis A

o    Hepatitis B

o    Herpes Zoster

o    Human Papillomavirus

o    Influenza

o    Measles, Mumps, Rubella

o    Meningococcal

o    Pneumococcal

o    Tetanus, Diphtheria, Pertussis

o    Varicella

·         Obesity screening and counseling for all adults

·         Sexually Transmitted Infection (STI) prevention counseling for adults at higher risk

·         Tobacco Use screening for all adults and cessation interventions for tobacco users

·         Syphilis screening for all adults at higher risk

Covered Preventive Services for Women, Including Pregnant Women

·         Anemia screening on a routine basis for pregnant women

·         Bacteriuria urinary tract or other infection screening for pregnant women

·         BRCA counseling about genetic testing for women at higher risk

·         Breast Cancer Mammography screenings every 1 to 2 years for women over 40

·         Breast Cancer Chemoprevention counseling for women at higher risk

·         Breast Feeding interventions to support and promote breast feeding

·         Cervical Cancer screening for sexually active women

·         Chlamydia Infection screening for younger women and other women at higher risk

·         Folic Acid supplements for women who may become pregnant

·         Gonorrhea screening for all women at higher risk

·         Hepatitis B screening for pregnant women at their first prenatal visit

·         Osteoporosis screening for women over age 60 depending on risk factors

·         Rh Incompatibility screening for all pregnant women and follow-up testing for women at higher risk

·         Tobacco Use screening and interventions for all women, and expanded counseling for pregnant tobacco users

·         Syphilis screening for all pregnant women or other women at increased risk

Covered Preventive Services for Children

·         Alcohol and Drug Use assessments for adolescents

·         Autism screening for children at 18 and 24 months

·         Behavioral assessments for children of all ages

·         Cervical Dysplasia screening for sexually active females

·         Congenital Hypothyroidism screening for newborns

·         Developmental screening for children under age 3, and surveillance throughout childhood

·         Dyslipidemia screening for children at higher risk of lipid disorders

·         Fluoride Chemoprevention supplements for children without fluoride in their water source

·         Gonorrhea preventive medication for the eyes of all newborns

·         Hearing screening for all newborns

·         Height, Weight and Body Mass Index measurements for children

·         Hematocrit or Hemoglobin screening for children

·         Hemoglobinopathies or sickle cell screening for newborns

·         HIV screening for adolescents at higher risk

·         Immunization vaccines for children from birth to age 18 —doses, recommended ages, and recommended populations vary:

o    Diphtheria, Tetanus, Pertussis

o    Haemophilus influenzae type b

o    Hepatitis A

o    Hepatitis B

o    Human Papillomavirus

o    Inactivated Poliovirus

o    Influenza

o    Measles, Mumps, Rubella

o    Meningococcal

o    Pneumococcal

o    Rotavirus

o    Varicella

·         Iron supplements for children ages 6 to 12 months at risk for anemia

·         Lead screening for children at risk of exposure

·         Medical History for all children throughout development

·         Obesity screening and counseling

·         Oral Health risk assessment for young children

·         Phenylketonuria (PKU) screening for this genetic disorder in newborns

·         Sexually Transmitted Infection (STI) prevention counseling for adolescents at higher risk

·         Tuberculin testing for children at higher risk of tuberculosis

·         Vision screening for all children

For additional details please visit: http://www.healthcare.gov/law/about/provisions/services/lists.html

Coverage of Young Adults under Age 26

Source: http://www.hhs.gov/ociio/regulations/adult_child_faq.html

Covering Young Adults Under the Affordable Care Act - Affordable Care Act
The comprehensive health care reform law enacted in March 2010. The law was enacted in two parts: The Patient Protection and Affordable Care Act was signed into law on March 23, 2010 and was amended by the Health Care and Education Reconciliation Act on March 30, 2010. The name “Affordable Care Act” is used to refer to the final, amended version of the law.

Under the Affordable Care Act, if your plan covers children, you can now add or keep your children on your health insurance policy until they turn 26 years old.

What This Means for You:

Until now, health plans could remove enrolled children usually at age 19, sometimes older for full-time students. Now, most health plans that cover children must make coverage available to children up to age 26. By allowing children to stay on their parents’ plan, the Affordable Care Act makes it easier and more affordable for young adults to get health insurance coverage.

Your adult children can join or remain on your plan whether or not they are:

·         married;

·         living with you;

·         in school;

·         financially dependent on you;

·         eligible to enroll in their employer’s plan, with one temporary exception: Until 2014, “grandfathered” group plans do not have to offer dependent coverage up to age 26 if a young adult is eligible for group coverage outside their parents’ plan.

·         Rates charged for dependents can no longer vary by the age of the covered dependent.

Some Important Details:

·         Your plan is required to provide a 30-day period—no later than the first day of your plan’s next “plan year” or “policy year” that begins on or after September 23, 2010—to allow you to enroll your adult child. Your plan must notify you of this enrollment opportunity in writing.

·         If you enroll your adult child during this 30-day enrollment period, your plan must cover your adult child from the first day of that plan year or policy year.

For additional details and frequently asked questions, please refer to: http://www.hhs.gov/ociio/regulations/adult_child_faq.html

IRS Asks How Non-Discrimination Rules Should Apply to Insured Group Health Plans

(From the September 27, 2010 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Effective for plan years beginning on or after September 23, 2010, non-grandfathered insured group health plans are prohibited from discriminating in favor of highly compensated individuals in substantially the same way as are self-insured group health plans. Before issuing guidance, the IRS is requesting public comment on how these rules should be applied to insured plans.

Favoring the Highly Compensated Is Prohibited

Effective for plan years beginning on or after September 23, 2010, the Patient Protection and Affordable Care Act as amended (PPACA) prohibits insured group health plans (except those that are grandfathered) from discriminating in favor of highly compensated individuals. Generally, the PPACA extends the nondiscrimination rules that apply to self-funded plans under Code § 105(h)(2) to insured group health plans. Essentially, Code § 105(h)(2) prohibits a plan from discriminating in favor of highly compensated individuals in eligibility to participate and in benefits provided.

Code § 105(h)(2) defines a "highly compensated individual" as: (a) one of the 5 highest paid officers, (b) a shareholder who owns (after application of the aggregation rules under Code § 318) more than 10 percent of the value of the employer stock, or (c) one who is among the highest-paid 25 percent of the employees. It defines the benefits provided under a self-funded plan as discriminatory unless all the benefits provided for participants who are highly compensated individuals are provided for all other participants. In terms of eligibility to participate, Code § 105(h)(2) requires that the plan benefit at least 70 percent of all employees (or, if at least 70 percent of the employees are "eligible to benefit" under the plan, the plan must benefit 80 percent of the employees who are "eligible to benefit."). Alternatively, the plan must benefit the employees who qualify under a classification set up by the employer and approved by the Treasury Department as nondiscriminatory. Certain categories of employees can be excluded in determining whether these percentage tests are met (i.e., part-time or seasonal employees, employees under age 25, etc.).

Final regulations under Code § 105(h) were issued nearly thirty years ago, in 1981.

Penalties for Noncompliance

The Notice points out that the penalties for noncompliance with Code § 105(h) will differ for insured plans. If a self-funded group health plan violates Code § 105(h)(2), the highly compensated individuals under the plan lose the tax benefit (i.e., their excess reimbursement is includible in income). In the case of insured plans, however, the failure to comply with Code § 105(h)(2) will subject the plan to penalties of $100 per day per individual discriminated against under Code § 4980D, and to potential civil action under ERISA to compel the plan to provide nondiscriminatory benefits (or to provide other appropriate equitable relief).

Comments Requested

In applying the Code § 105(h)(2) requirements to insured plans, the PPACA requires that the same definition of "highly compensated individual" be used, and requires that "similar" rules be applied in determining whether an insured plan is discriminating in eligibility to participate or in benefits provided. The PPACA also allows for "similar" rules to be developed in determining who the "employer" is when applying the nondiscrimination requirements (i.e., in the application of the controlled group rules under Code § 414(c), etc.). These are the areas, it would seem, where comments would be most relevant, although the Notice broadly requests public comments on any additional guidance that would be helpful in applying the Code § 105(h)(2) nondiscrimination requirements to insured group health plans.