On October 23, 2015, the DOL issued FAQs addressing several health and welfare plan issues, including:

The FAQs, Part XXIX in a series addressing ACA compliance, were prepared jointly by the DOL, Health and Human Services (HHS), and Treasury (the Departments).

An FAQ expands on the Departments' June 2013 final regulations governing wellness programs (see Legal Update, Final Wellness Program Rules Include Updated Notice Language). Specifically, the Departments conclude in the FAQ that group health plan rewards in the form of non-financial (or in-kind) incentives provided to participants who adhere to a wellness program are subject to the Departments' final wellness regulations. These incentives might include gift cards, sports gear or thermoses.

In general, rewards based on an individual satisfying a standard related to a health factor (for example, claims experience or medical history) are subject to the final regulations. Under the final regulations, a reward includes:

The FAQs address several questions relating to lactation counseling under the ACA's preventive services rules. In one FAQ, the Departments take the view that plans and insurers must provide a list of lactation counseling providers in the plan's network. The Departments reach this conclusion by applying the ACA's rules for summaries of benefits and coverage (SBCs), which require disclosure of an internet address (or other contact information) for obtaining a list of network providers (see Practice Note, Summaries of Benefits and Coverage under the ACA). In addition, the DOL's summary plan description (SPD) regulations require that SPDs describe:

(For more information, see SPD Compliance Chart for ERISA Plans.)

The provider list can be distributed in a separate document accompanying the SPD, if the SPD:

In another FAQ, the Departments take the position that nongrandfathered group health plans may not include a general exclusion for weight management services for adult obesity (see Practice Note, Grandfathered Health Plans). In general, the ACA preventive services rules require plans to cover screening for obesity in adults, and "behavorial interventions" (for example, how to maintain lifestyle changes).

Plans may use reasonable medical management techniques to determine the frequency, method, treatment, or setting for recommended preventive services, if those factors are not specified in a recommendation (see Practice Note, Preventive Health Services under the ACA, Other Than Contraceptives: Use of Reasonable Medical Management). However, plans may not impose general exclusions for a recommended preventive service.

The Departments conclude in an FAQ that if a colonoscopy is scheduled and performed as a screening procedure under the preventive services recommendations, a plan or insurer may not impose cost-sharing for a required specialist consultation before the screening procedure. This is the rule if the attending provider determines that the pre-procedure consultation would be medically appropriate for the individual, making the consultation an integral part of the colonoscopy. For example, the pre-procedure consultation could:

The Departments acknowledged that their prior guidance on this issue could have been interpreted as not requiring coverage of pre-procedure colonoscopy consultations. As a result, the Departments are applying this FAQ for plan years beginning on or after the date that is 60 days after October 23, 2015 (that is, the date the FAQs were published).

In previous FAQs, the Departments indicated that a recommendation involving screenings for breast cancer susceptibility genes (BRCA 1 or BRCA 2) includes both genetic counseling and BRCA testing (see Legal Update, ACA FAQs Address Coverage of Contraceptive Methods: Testing for Breast Cancer Susceptibility Genes). In the Part XXIX FAQs, the Departments conclude that women found to be at increased risk, using a screening tool for identifying family history associated with greater risk of having a potentially harmful gene mutation, must receive coverage (without cost-sharing) for:

This rule applies regardless of whether the woman was diagnosed with cancer, provided that she is not currently symptomatic or receiving active treatment for breast, ovarian, tubal, or peritoneal cancer.

Expanding on existing guidance (see Legal Update, Final Mental Health Parity Rules Clarify Plan Disclosure Requirements), an FAQ addresses whether an ERISA plan may refuse to provide a claimant with the plan's medical necessity criteria for denying a 30-day inpatient stay to treat anorexia (a mental health benefit under the plan). The plan in the FAQ argued that the medical necessity information was proprietary or had commercial value. In the Departments' view, the plan may not refuse to provide this information because, under ERISA and the mental health parity rules, the criteria must be provided regarding both mental health/substance use disorder benefits and medical/surgical benefits. This rule also applies to the plan's processes, strategies, evidentiary standards, and other factors used in developing and applying its medical necessity determinations.

Citing DOL Advisory Opinion 96-14A, the Departments noted that the medical necessity criteria are "instruments under which the plan was established or is operated" for purposes of ERISA's general disclosure requirements (29 U.S.C. § 1024(b)). As a result, this information must be disclosed even if it is held by a third-party commercial vendor. Although a plan may provide a summary document describing the plan's medical necessity criteria, this document is not a substitute for providing the actual medical necessity criteria (if those documents are requested).

An FAQ addresses the methods by which certain closely-held, for-profit employers with self-insured plans (and which have religious objections to covering contraceptive services) may avoid having to contract or pay for that coverage (see Practice Note, Contraceptives Coverage under the ACA). The FAQ addresses how third party administrators (TPAs) are designated as the ERISA plan administrator responsible for separately providing payments for contraceptive services.

Although the ACA's much-litigated contraceptives coverage rules are the most high-profile aspect of the preventive services requirement, that mandate also includes an expansive list of services that must be covered without participant cost-sharing. For example, for plan years beginning on or after specified dates during 2015, the list now includes screening for Hepatitis B virus infection in individuals who are at high risk for infection. Plan disclosure obligations also may apply regarding the preventive services rules, including, as discussed above, network provider lists for lactation counseling providers.