Question: What benefits are health plans required to cover under the ACA preventive health services mandate?

Short Answer: The ACA requires health plans to cover four broad categories of preventive services without any cost-sharing (i.e., at no cost to the participant).  The Health Resources and Services Administration (HRSA) recently updated its guidelines to include several new women preventive services that health plans must cover beginning in 2023.

Which Plans are Subject to the ACA Preventive Health Services Mandate?

The general rule is that all group health plans are subject to the ACA preventive health services mandate.

The only group health plans not subject to the preventive health services mandate are:

• Excepted benefits (e.g., dental, vision, health FSA, EAP); and

• Grandfathered plans.

What Does the ACA Preventive Health Services Mandate Require?

The ACA preventive health services mandate requires that the plan cover all of the listed preventive health services without any cost-sharing.  Examples of prohibited cost-sharing include deductibles, copays, or coinsurance.

In other words, the plan must provide such preventive health services at no cost to the participant.

Which Preventive Health Services are Covered by the Mandate?

The ACA preventive health services mandate includes four broad categories of required coverage:

• USPSTF A&B: All 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 (USPSTF).

• ACIP Immunizations: All immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC).

• HRSA Child Preventive Services: All evidence-informed preventive care and screenings for infants, children, and adolescents that are provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).

• HRSA Women Preventive Services: All evidence-informed preventive care and screenings for women that are provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).

• https://www.uspreventiveservicestaskforce.org/uspstf/recommendation-topics/uspstf-and-b-recommendations

• https://www.cdc.gov/vaccines/hcp/acip-recs/index.html

• https://downloads.aap.org/AAP/PDF/periodicity_schedule.pdf

• https://www.hrsa.gov/womens-guidelines/index.html

Healthcare.gov provides a nicely formatted summary overview of all these services that is useful for individuals to review here.

The U.S. Department of Health & Human Services, Department of Labor, and the Treasury’s (the “Department’s”) ACA FAQs are the best resource for specific limitations and requirements.

Except for services related to Covid-19, health plans generally must cover newly added preventive care services as of the first plan year that begins on or after the date that is one year after the date the new recommendation or guideline is issued.  The CARES Act added special “rapid coverage” rules for preventive services related to Covid-19 (including vaccines) providing that health plans must cover the newly added services within 15 business days of the recommendation from USPSTF or ACIP for the duration of the public health emergency.

Contraception Component Sparks Controversy

The women preventive services component of the ACA preventive health services mandate includes the requirement that adolescent and young women have access to the full range of female-controlled FDA-approved contraceptive methods, effective family planning practices, and sterilization procedures to prevent unintended pregnancy and improve birth outcomes.  The controlling HRSA guideline includes contraceptive counseling, initiation of contraceptive use, and follow-up care.

This contraception component of the mandate has been the subject of intense debate and litigation. As a result, the Departments have provided numerous forms of exemptions and accommodations to various types of employers with religious or moral objections to covering such services.

The contraception issue has also be the subject of three(!) U.S. Supreme Court decisions expanding and affirming such exemptions/accommodations: Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Zubik v. Burwell, 578 U.S. __ (2016),  Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. __ (2020).

For more details on the ACA’s contraceptive coverage and exemptions:

• Health Affairs has a useful detailed summary here

• Gov has a useful brief overview here

The Departments also recently issued another round of FAQ guidance on the contraception component addressing complaints and reports that health plans have denied participants of various aspects of the required coverage.  The guidance states that the Departments are investigating these matters and may take further enforcement, corrective, or regulatory action to remedy the issue.

New HRSA Women Preventive Service Mandates for 2023

HRSA issued updated guidelines effective December 30, 2021, that make changes to six categories of the women preventive services recommendations.  Health plans must cover these new preventive services no later than the first plan year beginning one year after December 30, 2021, which means they will be included for plan years beginning on or after January 1, 2023.

The updated guidelines include additional preventive services related to:

• Obesity prevention in midlife women:

• Breastfeeding services and supplies:

• Contraception

• Counselling for sexually transmitted infections (STIs):

• Screening for HIV:

• Well-woman preventive visits:

• Counselling for women aged 40 – 60 with normal or overweight BMI to prevent obesity

• Specifying access to double electric breast pumps and breast milk storage supplies

• Specifying access to contraceptives listed in the FDA’s birth control guide

• Minor technical adjustments

• Specifying that screening tests for HIV be available beginning at age 15 and at least once lifetime, risk assessment and preventive education beginning at age 13

• Specifying that pre-pregnancy, prenatal, postpartum, and interpregnancy visits are included here.

What About Preventive Services for HSA Eligibility Purposes?

The general rule is that an individual must meet two requirements to be HSA-eligible (i.e., to be eligible to make or receive HSA contributions):

• Be covered by an HDHP; and

• Have no disqualifying coverage (generally any medical coverage that pays pre-deductible, including Medicare).

HSA eligibility also requires that the individual cannot be claimed as a tax dependent by someone else.

One of the key requirements for all HDHP coverage is that the plan impose at least the statutory minimum deductible prior to paying for covered services.  In 2022, the HDHP minimum deductible is, 400 for single coverage, and, 800 for family coverage.

The main exception to the HDHP minimum deductible requirement is the ability of an HDHP to provide first-dollar coverage (i.e., not subject to the deductible) for preventive care without affecting HSA eligibility.

The IRS has incorporated the ACA preventive health services mandate items into the HSA-related preventive care definition to ensure that HDHPs’ first-dollar coverage of the required ACA preventive services does not affect HSA-eligibility.

Furthermore, the IRS recently expanded the list of first-dollar preventive services that an HDHP may (but is not required to) offer without disqualifying the covered individual from HSA eligibility to include medical services and items to prevent exacerbation of a chronic condition, as well as medical items and services related to testing for and treatment of Covid-19.

These preventive services can also be covered by a limited purpose health FSA or a combination limited purpose/post-deductible FSA without disqualifying the individual from HSA eligibility.

• For more details, see our 2022 Newfront Go All the Way With HSA Guide.

Relevant Cites

29 CFR §2590.715-2713(a)(1):

(1) In general.Beginning at the time described in paragraph (b) of this section and subject to Sec. 2590.715-2713A, a group health plan, or a health insurance issuer offering group health insurance coverage, must provide coverage for and must not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible) for—

(i)   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 with respect to the individual involved (except as otherwise provided in paragraph (c) of this section);

(ii)   Immunizations for routine use in children, adolescents, and adults 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 (for this purpose, a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention is considered in effect after it has been adopted by the Director of the Centers for Disease Control and Prevention, and a recommendation is considered to be for routine use if it is listed on the Immunization Schedules of the Centers for Disease Control and Prevention);

(iii)   With respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration;

(iv)   With respect to women, such additional preventive care and screenings not described in paragraph (a)(1)(i) of this section as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of section 2713(a)(4) of the Public Health Service Act, subject to 45 147.131, 147.132, and 147.133; and

(v)   Any qualifying coronavirus preventive service, which means an item, service, or immunization that is intended to prevent or mitigate coronavirus disease 2019 (COVID-19) and that is, with respect to the individual involved—

(A)   An evidence-based item or service that has in effect a rating of A or B in the current recommendations of the United States Preventive Services Task Force; or

(B)   An immunization that has in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention (regardless of whether the immunization is recommended for routine use). For purposes of this paragraph (a)(1)(v)(B), a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention is considered in effect after it has been adopted by the Director of the Centers for Disease Control and Prevention.

…

(b) Timing.

(1) In general.A plan or issuer must provide coverage pursuant to paragraph (a)(1) of this section for plan years that begin on or after September 23, 2010, or, if later, for plan years that begin on or after the date that is one year after the date the recommendation or guideline is issued, except as provided in paragraph (b)(3) of this section.

…

(3) Rapid coverage of preventive services for coronavirus.In the case of a qualifying coronavirus preventive service described in paragraph (a)(1)(v) of this section, a plan or issuer must provide coverage for such item, service, or immunization in accordance with this section by the date that is 15 business days after the date on which a recommendation specified in paragraph (a)(1)(v)(A) or (B) of this section is made relating to such item, service, or immunization.

IRS Notice 2013-57:

Under this notice, preventive care for purposes of section 223(c)(2)(C) of the Code is anything that is preventive care under Notice 2004-23 and Notice 2004-50 without regard to whether it would constitute preventive care for purposes of section 2713 of the PHS Act. Preventive care for purposes of section 223(c)(2)(C) also includes services required to be provided as preventive health services by a group health plan or a health insurance issuer offering group or individual health insurance coverage under section 2713 of the PHS Act and regulations and other administrative guidance issued thereunder. Accordingly, a health plan will not fail to qualify as an HDHP under section 223(c)(2) of the Code merely because it provides without a deductible the preventive care health services required under section 2713 of the PHS Act to be provided by a group health plan or a health insurance issuer offering group or individual health insurance coverage.