Medical pathways in fertility and family building are complex, and the regulatory landscape is no different. At the federal level, treatment of infertility is not considered an essential health benefit. Currently, 21 states and D.C. have mandates for some or all fertility procedures, and 23 states have bills making their way through legislatures to add additional access. Even so, there’s no one-size-fits-all approach to compliance in this space.
The foundational considerations for compliance in fertility and family building benefits include a combination of general healthcare regulation issues, HIPAA, ERISA, and specific mandates, PPACA and MHPAEA. This blog breaks down these regulatory issues to help you understand how they fit into your overall compliance and communication strategies.
1) HIPAA: Health Insurance Portability and Accountability Act
The basics
HIPAA impacts the day-to-day mechanisms of how information is shared and how organizations function within their medical plans. It has significant provisions regarding the privacy and security of patient information. When it comes to family planning benefits, plans and providers must handle patient information with the same rigorous standards of privacy and security as they would with any other medical information.
Pertinent provisions for family building benefits
- Family planning details just like other health information, are considered Protected Health Information (PHI)
- Privacy Rule
- Security Rule
- Patient Rights
- Notice of Privacy Practices: Any unauthorized use or disclosure of PHI can result in significant penalties.
Takeaways
HIPAA requirements around sharing minimum necessary information do not change simply because information, such as a pregnancy, may be exciting news. While the idea of letting an employee’s manager know they’re going through IVF so that they can be supportive and accommodating is well-intentioned, the transmission of protected health information by an employer should be for the administration of a plan and nothing else. It is vital to protect the health information of participants and make sure managers are doing the same.
A safe and effective option for organizations is purpose-built training that empowers managers to communicate and contextualize the range of benefits and resources available to employees.
2) ERISA: Employee Retirement Income Security Act
The basics
Nearly all employer-sponsored group health plans that cover or reimburse medical expenses are subject to disclosure, reporting, and other requirements under ERISA. While cumbersome, these requirements are designed to provide protection to employee participants and beneficiaries.
Pertinent provisions for family building benefits:
- Fiduciary duties: The requirement to act in the best interest of plan participants
- Nondiscrimination: Prohibits discrimination against plan participants based on factors such as race, gender, age, or disability. For instance, with fertility and family benefits, this means ensuring that the benefits are being provided equally to men and women and will include coverage for things such as vasectomies and female contraceptives.
- Notices to plan participants: For instance, the need to notify plan participants of the Women’s Health and Cancer Rights Act (WHCRA) and the Newborns and Mothers Health Protection Act (NMHPA). There are template documents you can download directly from agency websites to help fulfill this requirement.
Takeaways
Communication and documentation are key to ensuring plan participants can easily access information about their plan and that all documents are accurately aligned. A great place to start is with your plan documents and Summary Plan Description, which outline the formal terms and conditions of the health insurance plan and help participants understand their coverage.
Want to learn more about the best practices around compliance communications? Click here.
3) PPACA: Patient Protection and Affordable Care Act
The basics
The ACA brought about numerous changes and requirements, including the establishment of a list of essential health benefits (EHBs) that qualified health plans are required to cover. Family planning and contraceptive care are part of these essential health benefits, so these services are necessary to include in your health plan in order to be compliant.
Pertinent provisions for family building benefits:
- Coverage without cost-sharing
- FDA-approved contraceptives
- Coverage of counseling services
- Gynecological services
Takeaways
Minor shifts in regulations at the state or federal level may appear small, but often create waves of change at the organization level. Utilize the relationship between your counsel and your fertility and family building vendor to navigate trends and changes.
4) MHPAEA: Mental Health Parity and Addiction Equity Act
The basics
MHPAEA is primarily concerned with ensuring that insurance plans offer mental health and substance use disorder benefits that are on par with their medical/surgical benefits. It’s designed to prevent insurance plans from applying more restrictive benefit limitations on mental health and substance use disorder benefits than on medical or surgical benefits.
MHPAEA does not have specific provisions related directly to family planning but is relevant if the plan also covers mental health services related to reproductive health, pregnancy, post-partum depression, mental fog related to menopause or other related conditions.
Pertinent provisions for family building benefits
- Parity in Treatment Limitations
- Parity in Non-Quantitative Treatment Limitations (NQTLs)
- Scope of Service Application
- Disclosure
Takeaways
Mental health goes hand in hand with fertility and family building, and vendors in the space need to prioritize equitable access and financial parity.
NOTE: As of July 2023, there are newly proposed rules to strengthen MHPAEA. The Department of Labor conducted a study of a 2019 birth cohort in Texas, following mothers and babies to understand the impact, cost, and loss of productivity associated with maternal mental health conditions. The DOL identified that the loss of productivity and maternal health conditions cost the state of Texas $2.2 billion. Therefore, the Department developed new rules to provide more guidance and regulation around supporting and providing benefits for maternal mental health conditions.
This proposal hasn’t yet been finalized, but it is an important call for equitable benefits and support in the previously heavily stigmatized space around maternal mental health.
Want to learn more about compliance considerations and how they may impact your benefits strategy? Watch our webinar: The Compliance Puzzle – Legal Realities and Implications That Influence Family Building Benefits.