The Affordable Care Act (ACA) not only expanded the number of people covered by health insurance, but also the comprehensiveness of coverage, particularly for people insured as individuals or through small employers. Prior to the ACA, many health plans did not cover maternity care or ensure minimum coverage. When designing the law, Congress included an essential health benefits (EHB) requirement to ensure plans covered a standard set of benefits. At the end of 2022, the U.S. Department of Health and Human Services (HHS) published a request for information (RFI) asking for public comments on updating the EHB requirements. This is the first time HHS has requested comments on updating the EHB since it went into effect in 2014.
Much has changed in health needs and care over the past decade: nationwide infectious disease and substance abuse epidemics, a greater awareness of social determinants and discrimination in health and health care, and increased use of nonphysician professionals and telehealth in health care delivery. The RFI gives the public an opportunity to comment on how coverage should adapt to meet these changes.
What Health Benefits Are Essential Under the ACA?
The ACA specifies that the EHB are to be defined by HHS and items and services in 10 categories: 1) ambulatory patient services; 2) emergency services; 3) hospitalization; 4) maternity and newborn care; 5) mental health and substance use disorder services, including behavioral health treatment; 6) prescription drugs; 7) rehabilitative and habilitative services and devices; 8) laboratory services; 9) preventive and wellness services and chronic disease management; and 10) pediatric services, including oral and vision care. The scope of EHB coverage is supposed to be “equal to the scope of benefits provided under a typical employer plan.”
The ACA requires all nongrandfathered individual and small-group health insurance plans to cover the EHB. Moreover, all group health plans and insurers must limit beneficiaries’ out-of-pocket costs related to EHB. The ACA also requires state Medicaid plans offered to people eligible under the ACA’s Medicaid expansion to cover the EHB, modified for the Medicaid population.
Rather than specifying the precise items and services covered in each category, HHS delegated this authority to the states and private insurers in the 2013 rule implementing the requirement. Each state had to choose an EHB “benchmark” plan from a menu of 10 options, including small-group and government employee plans. States were responsible for supplementing the benchmark options for services not commonly covered at that time, including habilitative services and pediatric oral and vision care. The HHS rule also provides specific requirements for drug coverage. Health plans subject to the EHB rule had to provide benefits “substantially equal” to the benchmark plan. The Trump administration amended the rule in 2019 to allow states additional flexibility in defining their benchmark plans (with HHS approval) and allowed insurers to substitute benefits across categories.
The Request for Information
The ACA requires HHS to review the EHB periodically to assess whether: enrollees are facing difficulties in accessing services because of coverage and cost; EHB should be modified because of advances in medicine or science; gaps in coverage need to be addressed; and changes in benefits increase costs or affect actuarial requirements. The December 2 RFI asks for comments on whether updates are necessary based on these issues.
Although HHS believes the benchmark approach has minimized market disruption and provided consumers with familiar products, it is concerned that some benchmark plans use broad and ambiguous service descriptions that may confuse consumers and make determination of compliance difficult. While health plans generally cover the required categories, ambiguities often arise in coverage design that result in exclusions, denials, and coverage limitations that are not immediately visible. For example, a benchmark plan that requires coverage of “diagnostic radiology services and imaging studies” may result in more coverage disputes than one that explicitly states the types of radiology services covered. HHS seeks comments regarding the extent of this problem and how to address it. The department also seeks comments on whether the “typical employer plan” has changed since the EHB requirement was implemented, and, if so, whether the EHB approach also should change.
The RFI specifically asks for comments regarding barriers to mental health and substance use disorder services and telehealth, as well as the effects of utilization controls on cost and access.
The RFI raises several questions about incorporating medical evidence and scientific advancement into the EHB. These are focused on whether advancements are being incorporated into EHB; how changes could inform CMS’ health equity and nondiscrimination agenda and assist underserved populations; and how the EHB can be used to address public health emergencies. Additional issues include access to nutrition-related health services, maternal health services, supportive language services, naloxone, and doula services.
HHS also has requested comments on potential gaps in the EHB concerning behavioral health, habilitative services, pediatric services, services for people with chronic and lifelong conditions, and services for rural populations. A specific concern is whether insurers and group health plans limit access to necessary social and educational habilitative and behavioral services.
The RFI also addresses coverage of prescription drugs. Currently drug coverage requirements are based on United States Pharmacopeia classifications. Other drug classification systems are available, and HHS asks what the risks and benefits would be of switching to one of these.
Finally, HHS requests comments on the extent to which health plans should be allowed to substitute benefits for those provided in the benchmark plan, for example, rehabilitative for habilitative services. Plans have been able to substitute benefits within a category from the outset; between 2019 and 2023, they were able to substitute among categories.
Comments are due by the end of January.