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Feds: ERISA plans must share their decision support tools

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Obama administration officials say a group health plan governed by the Employee Retirement Income Security Act (ERISA) must make all instruments used in plan operations available to participants and beneficiaries.

A participant can see the formulas, standards for evidence, and other factors used to make decisions about whether care is necessary even if the plan administrator says the information requested is proprietary or has commercial value, officials say.

The officials, at the U.S. Treasury Department, the U.S. Department of Labor and the U.S. Department of Health and Human Services (HHS), make that argument in a new set of answers to frequently asked questions (FAQs) about the Patient Protection and Affordable Care Act of 2010 (PPACA) and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

The “tri agency” officials give answers about matters such as the PPACA preventive services package requirements, the PPACA wellness program provisions and MHPAEA coverage criteria disclosure rules.

PPACA requires non-grandfathered individual health insurance policies and group health plans to cover an HHS-approved package of preventive health services without imposing deductibles, co-payments or other cost-sharing requirements on the patients.

In the preventive services package section of the new FAQ answer set, tri agency officials summarize the procedures for employers with religious objections to providing the contraceptive services benefits normally required by the HHS regulations implementing the PPACA preventive services package standards.

For a patient aged 50 or older, the PPACA preventive services package also includes colonoscopy coverage. In the new FAQ answer set, officials forbid affected coverage issuers from requiring patients to pay for the specialist consultation associated with a colonoscopy, or from requiring patients to pay for testing any pieces of tissue removed during a preventive screening colonoscopy for cancer.

In the PPACA wellness program section, tri agency officials said government regulations apply to non-financial incentives, such as gifts of sports gear and Thermos containers, as well as to cash incentives. 

In the MHPAEA medical necessity criteria disclosure section, the officials take questions involving patients with anorexia who are trying to get health plans to cover their care.

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One patient says a plan denied coverage for a 30-day inpatient stay, saying the inpatient stay was not medically necessary. The patient asked the plan administrator for “any information regarding the processes, strategies, evidentiary standards, or other factors used in developing the medical necessity and in applying them,” the patient says.

“May the plan administrator deny me this information based on an assertion that the information is ‘proprietary’ and/or has ‘commercial value’?” the patient asks.

In the past, insurers have argued that they need to keep some information about medical necessity standards confidential, to keep health care providers from using precise information about standards to maximize revenue by providing inappropriate care.

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In the new FAQ answer set, officials say a 1996 Labor Department document, Advisory Opinion 96-14A, forbids an ERISA health plan from withholding “‘instruments under which the plan is established or operated’ on the basis that the information is ‘proprietary.’”

“The Department of Labor stated that any documents or instruments that specify formulas, methodologies, or schedules to be applied in determining or calculating a participant’s or beneficiary’s benefit entitlement under an employee benefit plan…must be provided, notwithstanding that the plan asserted that such fee schedules are of a ‘proprietary’ nature,” officials say. “Such information must be disclosed, even in cases where the source of the information is a third-party commercial vendor.”

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