Preventive Services in Federal Law
What does the ACA say about insurer coverage of preventive services?
The Patient Protection and Affordable Care Act (ACA)—the health insurance reform legislation passed by Congress and signed into law by President Obama on March 23, 2010—helps make preventive health affordable and accessible for all Americans by requiring health plans to cover certain preventive services and eliminate cost sharing for them (meaning plans can no longer charge patients a copayment, coinsurance, or deductible when these services are delivered by an in-network provider). There are two overlapping provisions of the ACA that address Preventive Services:
Section 2713 Preventive Services
This first provision was passed as part of Section 1001 of the Patient Protection and Affordable Care Act (ACA), which amended Part A of title XXVII of the Public Health Service Act (42 U.S.C. 300gg et seq.) by creating a new Section 2713 that reads as follows:
IN GENERAL.—A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—
(1) evidence-based items or services that have in effect a rating of 'A' or 'B' in the current recommendations of the United States Preventive Services Task Force;
(2) immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved; and
(3) with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration.
(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
(5) for the purposes of this Act, and for the purposes of any other provision of law, the current recommendations of the United States Preventive Service Task Force regarding breast cancer screening, mammography, and prevention shall be considered the most current other than those issued in or around
Nothing in this subsection shall be construed to prohibit a plan or issuer from providing coverage for services in addition to those recommended by United States Preventive Services Task Force or to deny coverage for services that are not recommended by such Task Force.
(2) MINIMUM.—The interval described in paragraph (1) shall not be less than 1 year.
VALUE-BASED INSURANCE DESIGN.—The Secretary may develop guidelines to permit a group health plan and a health insurance issuer offering group or individual health insurance coverage to utilize value-based insurance designs.
Note: The Section 2713 requirements apply to individual, small group, and large group plans (essentially all private insurance plans). They also apply to the Medicaid expansion population, but not necessarily to traditional Medicaid. States have an incentive to cover the full slate of Section 2713 preventive services without cost-sharing for traditional Medicaid, however: those that do receive a 1% increase in the federal contribution to Medicaid (FMAP) for those services. At least ten states have provided this coverage and been approved to receive the incentive: California, Delaware, Hawaii, Kentucky, Montana, Nevada, New Hampshire, New Jersey, New York, and Ohio.
Essential Health Benefits
This second provision was passed as part of Section 1302 of the Patient Protection and Affordable Care Act (ACA), which defined a package of ten categories of services that health insurance plans must cover, including Preventive Services and Maternity Care. The categories as defined in the statute are as follows:
- Ambulatory patient services (outpatient care you get without being admitted to a hospital)
- Emergency services
- Hospitalization (like surgery and overnight stays)
- Maternity and newborn care (both before and after birth)
- Mental health and substance use disorder services, including behavioral health treatment (this includes counseling and psychotherapy)
- Prescription drugs
- Rehabilitative and habilitative services and devices (services and devices to help people with injuries, disabilities, or chronic conditions gain or recover mental and physical skills)
- Laboratory services
- Preventive and wellness services and chronic disease management
- Pediatric services, including oral and vision care
Note: The EHB requirements apply to small group and individual plans, but not to large group plans. They also apply to the Medicaid expansion population, but not to traditional Medicaid.
Where do breastfeeding supports fit into these provisions?
Breastfeeding supports are actually addressed under Section 2713 in two of the specified categories of Preventive Services: 1) U.S. Preventive Services Task Force Recommendations, and 2) Women's Preventive Services. The Women's Preventive Services have been used as the primary source for defining the parameters for implementation of the benefit.
See also the HHS Final Rule: "Coverage of Certain Preventive Services Under the Affordable Care Act" [7/14/2015]
United States Preventive Services Task Force Recommendation
The United States Preventive Services Task Force (USPSTF) has rated "Breastfeeding: Primary Care Interventions" with a "B" grade (updated in October 2016). This recommendation updates the 2008 USPSTF recommendation on "primary care interventions to promote and support breastfeeding." The 2016 updated recommendation describes the following:
- Patient Population Under Consideration: This recommendation applies to pregnant women, new mothers, and their infants and children. Interventions to support breastfeeding may also involve a woman's partner, other family members, and friends. This recommendation does not apply in circumstances where there are contraindications to breastfeeding (e.g., certain maternal medical conditions or infant metabolic disorders, such as galactosemia). The USPSTF did not review evidence on interventions directed at breastfeeding of preterm infants.
- Interventions: Breastfeeding support can begin during pregnancy and continue through the early life of the child. Primary care clinicians can support women before and after childbirth by providing interventions directly or through referral to help them make an informed choice about how to feed their infants and to be successful in their choice. Interventions include promoting the benefits of breastfeeding, providing practical advice and direct support on how to breastfeed, and providing psychological support. Interventions can be categorized as professional support, peer support, and formal education, although none of these categories are mutually exclusive, and interventions may be combined within and between categories.
Women's Preventive Services Guidelines
The Health Resources and Services Administration (HRSA) supports Women’s Preventive Services Guidelines that include "Breastfeeding Services and Supplies" (updated in December 2016). The HRSA-supported Women's Preventive Services guidelines were originally established in 2011 based on recommendations from a Department of Health and Human Services' commissioned study by the Institute of Medicine (IOM), now known as the National Academy of Medicine (NAM). The 2016 updated guidelines describe the following:
- Clinical Recommendations: The Women’s Preventive Services Initiative recommends comprehensive lactation support services (including counseling, education, and breastfeeding equipment and supplies) during the antenatal, perinatal, and the postpartum period to ensure the successful initiation and maintenance of breastfeeding.
- Implementation Considerations: Lactation support services include counseling, education, and breastfeeding equipment and supplies. A lactation care provider should deliver lactation support and provide services across the antenatal, perinatal, and postpartum periods to ensure successful preparation, initiation, and continuation of breastfeeding. Lactation care providers include, but are not limited to, lactation consultants, breastfeeding counselors, certified midwives, certified nurse-midwives, certified professional midwives, nurses, advanced practice providers (eg, physician assistants and nurse practitioners), and physicians. Breastfeeding equipment and supplies, as agreed upon by the woman and her lactation care provider, include, but are not limited to, double electric breast pumps (including pump parts and maintenance) and breast milk storage supplies. Access to double electric pumps should be based on optimization of breastfeeding, and not predicated on prior failure of a manual pump.
Note: While not included as part of the HRSA-supported guidelines, the Implementation Considerations provide additional clarity on implementation of the guidelines into clinical practice. They are separate from the clinical recommendations, are informational, and are not part of the formal action by the Administrator under Section 2713.
What does this mean: what are insurers specifically required to cover?
The Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury, have issued several sets of Frequently Asked Questions (FAQs) regarding implementation of the Affordable Care Act, to answer questions
from stakeholders to help people understand the law and benefit from it, as intended. The FAQs are available on both the DOL website and the CMS website. The content of the FAQs related to breastfeeding support is excerpted below (current as of Set 37, issued 1/12/2017).
From FAQs Set 12
Q18: The USPSTF already recommends breastfeeding counseling. Why is this part of the HRSA Guidelines?
Under the topic of “Breastfeeding Counseling” the USPSTF recommends interventions during pregnancy and after birth to promote and support breastfeeding. The HRSA Guidelines specifically incorporate comprehensive prenatal and postnatal lactation support, counseling, and equipment rental. Accordingly, the items and services described in the HRSA Guidelines are required to be covered in accordance with the requirements of the interim final regulations (that is, without cost-sharing, subject to reasonable medical management, which may include purchase instead of rental of equipment).
Q19: How are certified lactation consultants reimbursed for their services under the HRSA Guidelines?
Reimbursement policy is outside of the scope of the HRSA Guidelines and the Departments’ regulations.
Q20: Under the HRSA Guidelines, how long after childbirth is a woman eligible for lactation counseling? Are breastfeeding equipment and supplies unlimited?
Coverage of comprehensive lactation support and counseling and costs of renting or purchasing breastfeeding equipment extends for the duration of breastfeeding. Nonetheless, consistent with PHS Act section 2713 and its implementing regulations, plans and issuers may use reasonable medical management techniques to determine the frequency, method, treatment, or setting for a recommended preventive item or service, to the extent not specified in the recommendation or guideline.
From FAQs Set 29
Q1: Are plans and issuers required to provide a list of the lactation counseling providers within the network?
Yes. The HRSA guidelines provide for coverage of comprehensive prenatal and postnatal lactation support, counseling, and equipment rental as part of their preventive service recommendations, including lactation counseling.4 While the preventive services requirements under PHS Act section 2713 do not include specific disclosure requirements, provisions of other applicable law require disclosure of lactation counseling providers available under the plan or coverage. Under PHS Act section 2715 and implementing regulations, group health plans and health insurance issuers offering group or individual health insurance coverage must provide a Summary of Benefits and Coverage (SBC) that includes an Internet address (or other contact information) for obtaining a list of the network providers.
With respect to group health plans subject to the Employee Retirement Income Security Act (ERISA), ERISA section 102 and the Department of Labor’s implementing regulations provide that a group health plan must provide a Summary Plan Description (SPD) that describes provisions governing the use of network providers, the composition of the provider network, and whether, and under what circumstances, coverage is provided for out-of-network services.6 For those plans with provider networks, the listing of providers can be furnished in a separate document accompanying the SPD, as long as the SPD describes the provider network and states that provider lists are furnished automatically, without charge, as a separate document.
Finally, issuers of qualified health plans (QHPs) in the individual market Exchanges and the SHOPs currently must make their provider directories available online. For plan years beginning on or after January 1, 2016, a QHP issuer must publish an up-to-date provider directory, including information on which providers are accepting new patients, as well as the provider’s contact information, specialty, medical group, and any institutional affiliations, in a manner that is easily accessible to plan enrollees, prospective enrollees, the State, the Exchange, HHS, and OPM.
Q2: My group health plan has a network of providers and covers recommended preventive services without cost sharing when such services are obtained in-network. However, the network does not include lactation counseling providers. Is it permissible for the plan to impose cost sharing with respect to lactation counseling services obtained outside the network?
No. As stated in a previous FAQ9, while nothing in the preventive services requirements under section 2713 of the PHS Act or its implementing regulations requires a plan or issuer that has a network of providers to provide benefits for preventive services provided out-of-network, these requirements are premised on enrollees being able to access the required preventive services from in-network providers. The FAQ also stated that if a plan or issuer does not have in its network a provider who can provide a particular service, then the plan or issuer must cover the item or service when performed by an out-of-network provider and not impose cost sharing with respect to the item or service. Therefore, if a plan or issuer does not have in its network a provider who can provide lactation counseling services, the plan or issuer must cover the item or service when performed by an out-of-network provider without cost sharing.
Q3: The State where I live does not license lactation counseling providers and my plan or issuer will only cover services received from providers licensed by the State. Does that mean that I cannot receive coverage of lactation counseling without cost sharing?
No. Subject to reasonable medical management techniques, lactation counseling must be covered without cost sharing by the plan or issuer when it is performed by any provider acting within the scope of his or her license or certification under applicable State law. Lactation counseling could be provided by another provider type acting within the scope of his or her license or certification (for example, a registered nurse), and the plan or issuer would be required to provide coverage for the services without cost sharing.
Q4: A plan or issuer provides coverage for lactation counseling without cost sharing only on an inpatient basis. Is it permissible for the plan or issuer to impose cost sharing with respect to lactation counseling received on an outpatient basis?
No. If a recommendation or guideline does not specify the frequency, method, treatment, or setting for the provision of a recommended preventive service, then the plan or issuer may use reasonable medical management techniques to determine any such coverage limitations. However, it is not a reasonable medical management technique to limit coverage for lactation counseling to services provided on an in-patient basis. Some births are never associated with a hospital admission (e.g., home births assisted by a nurse midwife), and it is not permissible to deny coverage without cost sharing for lactation support services in this case. Moreover, coverage for lactation support services without cost sharing must extend for the duration of the breastfeeding which, in many cases, extends beyond the in-patient setting for births that are associated with a hospital admission.
Q5: Are plans and issuers permitted to require individuals to obtain breastfeeding equipment within a specified time period (for example, within 6 months of delivery) in order for the breastfeeding equipment to be covered without cost sharing?
No. The requirement to cover the rental or purchase of breastfeeding equipment without cost sharing extends for the duration of breastfeeding, provided the individual remains continuously enrolled in the plan or coverage.