On May 11, the Departments of Health and Human Services (HHS), Labor (DOL) and Treasury (collectively, the “Departments”) issued Part XXVI of their FAQs about Affordable Care Act implementation. This latest FAQ provides additional guidance regarding “first-dollar” coverage of preventive services under the ACA (i.e., the requirement to provide certain preventive services without the imposition of cost sharing).

The FAQ focuses primarily on the coverage of Food and Drug Administration (FDA) approved contraceptives within the context of the ACA’s first-dollar preventive services mandate. The FAQ notes that the FDA has currently identified 18 different “methods” of contraception for women (including, among others, the patch, the sponge and three kinds of oral contraceptives). The FAQ then makes clear that plans and issuers must cover, without cost sharing, at least one form of contraception in each of these 18 “methods,” and that this coverage must include the clinical services, including patient education and counseling, needed for provision of the contraceptive method. For example, the FAQ states that a plan or issuer that covers, without cost sharing, some forms of oral contraceptives, some types of IUDs and some types of diaphragms, but excludes completely other forms of contraception, is not compliant with the ACA preventive services mandate.

Hence, the scope of required first-dollar coverage of contraception is broader than some plans and issuers had previously believed, and the FAQ, in recognition of this fact, states that the Departments will apply this interpretation of the scope of first-dollar coverage for plans or policy years beginning on or after the date that is 60 days after publication of the FAQs (i.e., plan or policy years beginning on or after July 10, 2015). The FAQs also note, as part of this clarifying guidance, that plans and issuers may utilize reasonable medical management techniques (including cost sharing) within each method, to encourage an individual to use certain specific items and services within a chosen method (e.g., imposing cost sharing on brand-name pharmacy items to encourage use of generic alternatives). However, the FAQs caution that the plan or issuer must defer to the determination of the attending provider as to the chosen form of contraceptive, if that determination is based on medical necessity.  Hence, if the attending provider determines that, for example, a brand-name oral contraceptive (for which the plan or issuer imposes cost sharing, to encourage use of generic alternatives) is medically necessary, the plan or issuer must provide the brand-name contraceptive without cost sharing.

In addition to this new guidance on coverage of contraceptives, the FAQ also notes that plans or issuers cannot limit recommended preventive services based on an individual’s sex assigned at birth, gender identity or recorded gender. Where an attending provider determines that a recommended preventive service is medically appropriate for the individual, and the individual otherwise satisfies the applicable criteria and coverage requirements, the plan or issuer must provide the recommended preventive service without cost sharing.  The FAQ uses as an example providing a mammogram or pap smear for a transgender man who has residual breast tissue or an intact cervix; these services must be provided without cost sharing if the attending provider determines they are medically appropriate (and the other coverage criteria are met).

Finally, the FAQ also provides guidance on several other preventive-care questions, including coverage of well-woman preventive care for dependents (if the plan or issuer covers dependent children, they must cover well-woman preventive services, including certain preconception and prenatal care, for dependent children); coverage of colonoscopies pursuant to United States Preventive Services Task Force recommendations (a plan or issuer may not impose cost sharing with respect to medically necessary anesthesia services performed in connection with a preventive colonoscopy); and coverage of BRCA testing (a plan or issuer must cover, without cost sharing, recommended genetic counseling and BRCA genetic testing for a woman who has not been diagnosed with BRCA-related cancer but who previously had another cancer).