The Departments of Labor (DOL) and Health and Human Services (DHHS) and the Treasury (referred hereafter as the Departments) invited the public to submit written comments on the Wellstone Act by May 28, 2009. These comments will be used to draft regulations that can be used to comply with the Wellstone Act.
Following is a summary of the areas in which the Departments invited comments to assist them in developing upcoming regulations:
- Do plans currently impose other types of financial requirements or treatment limitations on benefits? The term "financial requirement'' includes deductibles, copayments, coinsurance, and out-of-pocket expenses, but excludes aggregate lifetime and annual limits. The term "treatment limitation'' includes limits on the frequency of treatment, number of visits, days of coverage or other similar limits on the scope or duration of treatment.
- Are financial requirements or treatment limitations applied differently to (1) medical and surgical benefits and (2) mental health and substance use disorder benefits? Do plans currently vary coverage levels within each class of benefits?
- What information, if any, do plans currently make available regarding the criteria used to determine medical necessity related to mental health or substance use disorder benefits? To whom is this information currently made available and how is it made available? Are there industry standards or best practices with respect to this information and the communication thereof?
- What information, if any, do plans currently make available regarding the reasons for denials of coverage for services related to mental health or substance use disorder? To whom is this information currently made available and how is it made available? Are there industry standards or best practices with respect to this information and communication of this information?
- The Departments are interested in finding out whether plans currently provide out-of-network coverage for mental health and substance use disorder benefits. If so, how is such coverage the same as or different from out-of-network coverage provided for medical and surgical benefits?
- Which aspects of the increased cost exemption, if any, require additional guidance?
- Would model notices be helpful to facilitate disclosure to Federal agencies, State agencies, and participants and beneficiaries regarding a plan's or issuer's election to implement the cost exemption?
Meritain Health will continue to follow this matter and, as we learn new information that will assist plan sponsors in compliance with the Wellstone Act, we will inform you.
SOURCE: Federal Register/Vol. 74, No. 80
FREQUENTLY ASKED QUESTIONS
Until further guidance is issued, we have compiled a brief list of FAQs that you should find useful while reviewing your current plan design:
How soon must we comply?
Compliance is required as of the first day of the first plan year on or after October 3, 2009. Therefore, it is possible that some plans may need to comply by November 1, 2009. In order to appropriately identify your plan year, you should refer to your plan document.
There is a special rule for plans that cover union employees who are covered under a collective bargaining agreement (CBA). Compliance for these plans is not required until the later of (i) the date on which the CBA relating to the plan terminates (determined without regard to any extension agreed to after the enactment of the Wellstone Act) or (ii) January 1, 2010.
Are we required to offer mental health or substance abuse benefits?
No. A group health plan is not required to offer mental health or substance abuse benefits. You may choose to offer mental health benefits and not substance abuse benefits or vice versa. However, if those benefits are offered, they must comply with the requirements of the Wellstone Act.
Can we pick and chose which disorders we would like to cover under our mental health and substance abuse benefits?
The DOL has informally indicated that nothing prohibits a group health plan from picking and choosing which disorders they want to cover under their health plan. We are hoping that this will be supported in the regulations that are going to be issued.
Can we require precertification on mental health and substance abuse benefits?
The preamble to the Wellstone Act supports a group health plan taking measures to control costs. However, the DOL has informally indicated that if a group health plan does not impose precertification requirements on medical and/surgical services, but imposes a precertification requirement on mental health and substance abuse benefits, then this would be the same as imposing a financial limitation on mental health and substance abuse benefits in violation of the Wellstone Act.
Was a disclosure requirement really added as a result of this new law?
Yes. Upon request from a plan participant, potential plan participant or treating provider, a group health plan must disclose the criteria they used to determine if mental health and/or substance abuse benefits are medically necessary.
Is there really an exemption that can be sought if costs increase by 2%?
Yes. Under the Act, there is a voluntary opt-out clause for group health plans if the cost of covering medical and surgical benefits and mental health and substance abuse disorder benefits increase by more than 2% the first year and one percent annually thereafter. In order to seek this exemption, the group must have an actuary certify in writing and request the extension directly from the DOL. We are expecting additional information in upcoming regulations regarding exactly how to seek this exemption.
If I impose a dollar/visit maximum on my Occupational, Physical and/or Speech Therapy can I impose a dollar/visit maximum on my mental health and substance abuse benefits?
This is a question that is going to need to be clarified by regulations. There is speculation that if a health plan imposes dollar/visit maximum only on Occupational, Physical and/or Speech Therapy (and therefore not a majority of medical/surgical benefits), then imposing a dollar/visit maximum on all mental health and/or substance abuse benefits would be viewed as imposing a financial requirement on mental health and/or substance abuse benefits that is not being imposed equally on other medical and/or surgical benefits.
For example, if a group health plan limits occupational, physical and/or speech therapy benefits to 60 visits per calendar year and they do not impose a calendar year maximum on any other benefits under their plan then the group health plan most likely will not be able to impose a calendar year maximum on their mental health and/or substance abuse benefits.
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