On December 20, 2016, federal officials released FAQs About Affordable Care Act Implementation Part 35 (FAQ #35) in an ongoing series of informal guidance regarding the Affordable Care Act (ACA). This FAQ addresses several topics:
- Special enrollment rules.
- Preventive services.
- Qualified small employer health reimbursement arrangements.
A summary of the key points from FAQ #35 follows.
Special Enrollment Rules
Group health plans are subject to rules under the Health Insurance Portability and Accountability Act (HIPAA) requiring plans to offer a special enrollment (mid-year enrollment) opportunity for persons who are not enrolled when first eligible but then experience certain events. Examples of qualifying events include acquiring a new dependent through marriage, birth or adoption (including placement for adoption) of a child, or losing coverage under another plan. The requirements are referred to as the HIPAA special enrollment rules.
One of the events triggering a special enrollment opportunity is the involuntary loss of other coverage, such as losing coverage under the spouse’s plan, unless the loss is for cause or due to failure to pay premiums.
UPDATE: FAQ #35 confirms that persons are entitled to a special enrollment if they are otherwise eligible for the group plan, had other coverage (including individual insurance obtained inside or outside of a Marketplace) when the group plan coverage was previously offered, and now have lost eligibility for that other coverage. Further, the special enrollment rule applies whether or not the individual is eligible for other individual market coverage, though or outside of a Marketplace.
Coverage of Preventive Services
The Affordable Care Act (ACA) requires that nongrandfathered health plans provide 100 percent coverage without deductibles or co-pays for certain preventive services. Some exceptions are allowed regarding services received outside the network when they are available from in-network providers and for brand-name drugs when equivalent generics are available (unless the physician determines a medical necessity). See the following current lists of required preventive services:
- Preventive care benefits for adults.
- Preventive care benefits for women.
- Preventive care benefits for children.
For women’s health services, the current list of required preventive services includes prescribed contraceptives (including sterilization procedures, and patient education and counseling). At this time, there are 18 FDA-approved contraceptive methods and the plan must cover at least one item in each method at 100 percent. Plans also must have an “exceptions process” to ensure 100 percent coverage of any item within the method based on medical necessity as determined by the physician.
The preventive services requirements are developed based on recommendations from the U.S. Preventive Services Task Force (USPSTF), the Centers for Disease Control (CDC), the Health Resources and Services Administration (HRSA), and others, and are subject to change from time to time.
UPDATE: FAQ #35 explains that updated HRSA recommendations for women’s preventive services will apply for plan years beginning on or after December 20, 2017 (e.g., January 1, 2018 for calendar-year plans). Plans may adopt the new guidelines earlier if they choose. The updated guidelines address several women’s health services, including breast cancer screening, cervical cancer screening, gestational diabetes, breastfeeding services and supplies, and well-woman preventive visits.
The new guidelines also will require plans to cover all 18 of the FDA-approved contraceptive methods. Plans may continue to impose cost-sharing requirements on branded drugs for which generic equivalents are available. Note that the ACA provides certain exceptions regarding contraceptives with respect to plans sponsored by religious employers and nonprofit religious-affiliated employers; those exceptions will continue.
See the HRSA’s Women’s Preventive Services Guidelines for more information.
Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs)
Section 18001 of the recently-enacted 21st Century Cures Act creates an opportunity for small employers to offer a new type of health reimbursement arrangement for their employees’ healthcare expenses, including individual insurance premiums.
Employers of all sizes currently are prohibited from making or offering any form of payment to employees for individual health insurance, whether through premium reimbursement or direct payment. Employers also are prohibited from providing cash or compensation to employees if the money is conditioned on the purchase of individual health insurance. (Some exceptions apply; e.g., retiree-only plans, dental/vision insurance.) Violations can result in excise taxes of $100 per day per affected employee.
The new law does not repeal the existing prohibition, but rather it provides an exception for a new type of tax-free benefit called a Qualified Small Employer Health Reimbursement Arrangement (QSEHRA). Small employers meeting certain conditions may begin offering QSEHRAs in 2017. Our December 9, 2016 blog post, New Law Allows Small Employers to Pay Premiums for Individual Policies, summarized the requirements for small employers to offer QSEHRAs.
Separately, the 21st Century Cures Act offers small employers certain relief from excise taxes for violating the existing prohibition against employer payment of individual health insurance. The relief applies retroactively and continues through the 2016 plan year (whether or not the employer offers QSEHRAs in 2017), but certain conditions must be met. FAQ #35 clarifies the conditions for tax relief, as follows:
- The relief applies only to plan years beginning on or before December 31, 2016;
- The relief applies only to employers that employed on average fewer than 50 full-time and full-time-equivalent employees. In other words, for the relevant period, the employer must not have been an applicable large employer (ALE) as defined under the ACA; and
- The relief is limited to employer arrangements that pay or reimburse only individual health insurance premiums (or Medicare Part B or D premiums, in some cases). The relief does not extend to stand-alone health reimbursement arrangements that pay or reimburse medical expenses other than individual health insurance premiums.
Lastly, note that an employer arrangement that qualifies for relief from excise taxes generally will be considered minimum essential coverage and preclude covered persons from qualifying for premium tax credits (subsidies) at a Marketplace (Exchange).
Employers and their advisors are encouraged to review the complete FAQ #35 to ensure their group health plans continue to comply with the ACA’s requirements. The special enrollment rule merely confirms existing HIPAA requirements. For preventive services, the update regarding women’s health services applies for plan years beginning on or after December 20, 2017 (e.g., January 1, 2018 for calendar-year plans). Lastly, small employers may want to consider the new option for QSEHRAs starting in 2017.