Smoking Cessation, ACA and MHPAEA

The topic of smoking cessation has hit our radar a few times recently and we decided to dig a little deeper.  Remember that in no way are we providing legal advice, just helping to navigate topics concerning employee benefits.

• We need to separate the social aspect of stop-smoking programs from the legal requirements. Don’t confuse someone’s desire to provide coverage because it’s the “right thing to do” with the mandates required of insured/self-funded plans.
• The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) does not require that smoking cessation be provided as part of a health plan. In fact it doesn’t mandate any specific service be provided – only that if a service is provided as of the plan year on or after July 1, 2010, then that service must continue to be provided. If provided, benefit levels for the MH/SA service cannot be less than benefit levels for medical/surgical benefits under the plan.
• MHPAEA applies only to plans (insured or self-funded) with more than 50 employees.
• Since most plans exclude services for smoking cessation, they can continue to exclude those services and still be in compliance with MHPAEA.
• The ACA mandates that non-grandfathered plans must provide specific preventive services at no cost sharing on the part of the employee/patient. Those services are designated by recommendations from the United States Preventive Services Task Force (USPSTF). Two of the services address tobacco use:
• That clinicians ask all pregnant women about tobacco use and provide augmented, pregnancy-tailored counseling to those that smoke.
• That clinicians ask all adults about tobacco use and provide tobacco cessation interventions for those who use tobacco products.
• Much of the current debate revolves around the word “interventions”:
• If pregnant women should receive counseling, shouldn’t that also be the extent of the intervention for other smokers?
• The recommendation doesn’t require that all interventions be provided. Does counseling alone meet that recommendation, just as it does for pregnant women?
• The preventive care interim regulations indicate that treatment resulting from a preventive care screening can be subject to cost-sharing. Since nicotine addiction is a recognized medical condition, isn’t any intervention (including counseling and drug therapies) a “treatment”?
• ACA requires that beginning 1/1/2014, smoking cessation drugs will be eligible under Medicaid. This is the only specific reference to smoking cessation drugs in either MHPAEA or ACA.
• Given all the confusion and contradictions, it’s not surprising that there will be different solutions to this issue. Hopefully some clarity will come out of the final regulations (regulators aren’t required to meet specific deadlines for these), but no one should expect perfectly clear answers even then.