“But Officer, He Came Out of Nowhere!”

Lots of wrecks happen because drivers, staring at what’s directly in front of them, are unaware of dangers coming from other directions. This is an ACA blog, so right now we’re staring at the ACA changes being proposed by the Senate majority, but we want you to remain aware that collateral developments could spell trouble for your group health plan.  Here are two.

On June 16, 2017, the three ACA enforcement agencies (DOL, HHS, IRS) issued new FAQ guidance about non-quantitative treatment limitations (NQTL) and associated disclosure obligations, including a draft form to be used to request such disclosures from employer-sponsored group health plans.

Four federal statutes work together to forbid such plans to impose financial requirements and treatment limitations for mental health and substance use disorder (MH/SUD) benefits exceeding the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits, and to force such plans to make related disclosures so that plan participants, and their authorized representatives, can assess compliance. NQTL examples include “medical necessity criteria, fail-first policies, formulary design, or the plan’s method for determining usual, customary, or reasonable charges.”  Often, out-of-network providers make related disclosure requests as their patients’ authorized representatives.

This new guidance also clarifies that “if a group health plan or a health insurance issuer provides coverage for eating disorder benefits,” those are “mental health benefits” fully subject to parity and disclosure standards.

“Boom!” While you were focused on mental health parity rules, the U.S. District Court for the Eastern District of Texas applied the Americans with Disabilities Act (ADA) to an exclusion of coverage for Applied Behavior Analysis Treatment for autism spectrum disorder. See Whitley v. Dr Pepper Snapple Group, Inc., E.D. Texas No. 4:16-cv-00362, Memorandum Opinion and Order (Doc. 4) entered May 4, 2017.  The claimant, mother of a child needing that treatment, claimed that the employer amended its plan to exclude that treatment after and because she sought coverage.  Denying the employer’s summary judgment motion, the Court wrote:

Plaintiff alleges Dr. Pepper changed the 2016 Summary Plan Description in response to and in retaliation for her inquiries regarding whether the Plan covered ABA Treatment. Dr. Pepper responds that the 2016 Summary Plan Description “clarification” did not single out Plaintiff or her son because it applied to all participants. However, Plaintiff alleges that Dr. Pepper modified the 2016 Summary Plan Description to single out and exclude coverage for a particular disability after becoming aware that Plaintiff’s son suffered from that disability. Plaintiff has sufficiently established that the modification and denial of fringe health insurance benefits were an adverse employment action. Plaintiff has made a prima facie showing of discrimination.

The employer contended that ABA Treatment had never been covered and that the 2016 amendment just clarified that lack of coverage. Viewed in the light most favorable to the claimant, said the Court, the evidence supported her claim that the plan was changed to drop coverage after and because she sought coverage, in violation of the ADA.

So, we’ll stare along with you at the ACA changes made in the Senate bill to be released today, but keep your head on a swivel because there are dangers in every direction.