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Another Set of FAQs Regarding the ACA Issued

Some additional frequently asked questions (FAQs) regarding various Affordable Care Act (ACA) requirements, including their effect on the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA) notices, were recently prepared by the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury.

The DOL issued updated versions of the COBRA model general notice and model election notice that reflect that the Marketplace is now open. The new FAQs do a better job describing special enrollment rights in Marketplace coverage. They’re available online at www.dol.gov/ebsa/cobra.html. Additionally, the DOL issued a revised CHIPRA notice with similar updates related to Marketplace coverage, available at www.dol.gov/ebsa/compliance_assistance.html.

All non-grandfathered group health plans must now comply with annual cost-sharing limitations on out-of-pocket maximums that are the same as the limits that apply to HSA-qualified high deductible health plans. This is effective the first plan year that begins on or after January 1, 2014.

Regarding out-of-network providers, the amount in excess of the allowed amount no longer needs to count toward the out-of-pocket maximum. In the updated FAQs, the Departments indicate that a plan may use any reasonable method if choosing to count out-of-network spending towards the out-of-pocket maximum.

The Departments indicate that a plan may include only generic drugs toward the out-of-pocket maximum if medically appropriate and available, while providing a separate option of electing a brand name drug at a higher cost sharing amount. If, under this type of plan design, a participant or beneficiary selects a brand name prescription drug in circumstances in which a generic was available and medically appropriate, the plan may indicate that some or all of the amount paid by the participant or beneficiary isn’t required to be counted towards the annual out-of-pocket maximum.

For Employee Retirement Income Security Act (ERISA) plans, the summary plan description must explain which covered benefits won’t count towards an individual’s out-of-pocket maximum. In determining whether a generic is medically appropriate, a plan may use a reasonable exception process, such as the recommendation of an individual’s personal physician.

A non-grandfathered group health plan must provide coverage for in-network preventive items and services, as determined by U.S. Preventive Services Task Force (USPSTF) recommendations, and may not impose any cost-sharing requirements, such as a copayment, coinsurance, or deductible, with respect to those items or services.

It’s recommended that clinicians ask all adults about tobacco use and provide  cessation interventions for those who use tobacco products. Plans may use reasonable medical management techniques to determine the frequency, method, treatment, or setting for a recommended preventive service.

A group health plan or health insurance issuer is considered to be in compliance with the requirement to cover tobacco use counseling and interventions if, for example, the plan or issuer covers the following without cost-sharing: 

  • Screening for tobacco use; and for those who use tobacco products, at least two tobacco cessation attempts per year.

For this purpose, covering a cessation attempt includes coverage for: 

  • Four tobacco cessation counseling sessions of at least 10 minutes each (including telephone counseling, group counseling and individual counseling) without prior authorization; and all FDA-approved tobacco cessation medications (including both prescription and over-the-counter medications) for a 90-day treatment regimen when prescribed by a health care provider without prior authorization.

These are examples only. It’s possible to satisfy this preventive care mandate without offering all of the items listed above, but employers should consult with counsel.

Health FSAs may now allow up to $500 of unused amounts remaining at the end of a plan year to be paid or reimbursed to plan participants for qualified medical expenses incurred during the following plan year, provided that the plan does not also incorporate a grace period. The FAQs indicate that unused carry over amounts are not taken into account when determining if the health FSA satisfies the maximum benefit payable limit prong under the excepted benefits regulations.

The ACA requires that plan participants are provided with a 4-page summary of benefits and coverage (SBC) and uniform glossary. The Departments will not impose penalties on plans and carriers that are working diligently and in good faith to provide the required SBC content in an appearance that is consistent with the requirements. The enforcement relief continues to apply, and the Departments’ approach to implementation continues to emphasize assisting (rather than imposing penalties on) plans that are working diligently and in good faith to understand and comply with the new law.

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Brian McLaughlin (Brian.McLaughlin@usiaffinity.com) is vice president of USI Affinity’s Benefit Solutions Group. For more information about insurance, visit the Philadelphia Bar Association Insurance Exchange  at www.usiaffinityex.com/PhiladelphiaBar. For Lawyers’ Professional Liability and other business coverage, you can continue to visit  the regular Philadelphia Bar Association Insurance Program website at www.mybarinsurance.com/PhiladelphiaBar. If you’d like to talk to someone about insurance and benefits options for Philadelphia Bar Association members, call USI Affinity Benefit Specialists at 1-855-874-0267.

For over 75 years, the divisions of USI Affinity have developed, marketed and administered insurance and financial programs that offer affinity clients and their members unique advantages in coverage, price and service. As the endorsed broker of the Philadelphia Bar Association and more than 30 other state and local bar associations, and with more than 30,000 attorneys insured, USI Affinity has the experience and know-how to navigate the marketplace and design the most comprehensive and innovative insurance and benefits packages to fit a firm’s individual needs.

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