EA Public Policy
For further information about regulations affecting EAPs, see our FAQs
Recent Articles About US Health Care Reform
Information About SBCs
Recent Articles About US Parity Regulations
Recent Articles About the Affordable Care Act
The Affordable Care Act, passed by Congress and signed into law by the President in March 2010, was designed to provide better health security by putting in place comprehensive health insurance reforms that hold insurance companies accountable, lower health care costs, guarantee more choice, and enhance the quality of care for all Americans.
These articles and resources can help you get a grasp of the implications of health care reform for EAP - articles listed in reverse chronological order:
- December 2014 - The Departments of Treasury, Labor, and Health and Human Services issued final rules on excepted benefit standards for limited-scope vision and dental benefits, as well as employee assistance programs (EAPs). Plans that satisfy these standards are exempt from mandates under the Health Insurance Portability and Accountability Act (HIPAA), the Patient Protection and Affordable Care Act (PPACA), and other federal laws. The final regulations give employers more flexibility in their EAPs and stand-alone limited-scope dental and vision programs. The criteria for EAPs to qualify as excepted benefits are largely the same as in the proposed regulations.1 The final guidance does not address limited wraparound coverage; the departments intend to publish regulations in the future on such coverage, "taking into account the extensive comments received on this issue." For more information, read "Amendments to Excepted Benefits
A Proposed Rule by the Internal Revenue Service, the Employee Benefits Security Administration, and the Health and Human Services Department on 12/23/2014."
October 1, 2014 - US regulatory agencies affirm EAPs as 'limited excepted benefits'
Late last year, the U.S. Departments of Labor, Treasury and HHS jointly published proposed regulations that would define conditions under which EAPs would qualify as excepted benefits for purposes of the Health Insurance Portability and Accountability Act and the Affordable Care Act. The departments invited public comment from interested parties. In response, EAPA submitted a letter supporting EAPs as excepted benefits and analyzing the proposed criteria for exception. On Oct. 1, a final rule was issued in our favor, and "limited excepted benefits," will include EAPs. Interested parties can also read a copy of the Amendments to Excepted Benefits HERE.
EAPA submits comments supporting EAPs as ACA 'excepted benefits' (2/25/14)
Late last year, the U.S. Departments of Labor, Treasury and HHS jointly published proposed regulations that would define conditions under which EAPs would qualify as excepted benefits for purposes of the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act. The departments invited public comment from interested parties. In response, EAPA has submitted comments supporting EAPs as excepted benefits and analyzing the proposed criteria for exception. Read EAPA's comments HERE.
Departments of the Treasury, Labor, and HHS Propose To Treat Certain EAP Plans As ACA & HIPAA Excepted Benefits (12/24/13)
The Proposed Amendments To Excepted Benefits Regulation (Proposed Rule) published by the Agencies jointly in the December 24, 2013 Federal Register would add certain employee assistance programs (EAPs) as excepted benefits for purposes of the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA) and make certain other changes to the excepted benefits definition. Under the proposed regulations, an EAP will be an excepted benefit if all of the following conditions are met: Effective dates
The proposed regulations, generally would be effective for plan years beginning in 2015. However, through at least 2014, and until regulations are finalized, EAPs that meet the conditions of the proposed regulations will be considered to be excepted benefits. If the final regulations are more restrictive than the proposed, they will not become effective prior to January 1, 2015. Learn more HERE.
The EAP does not provide "significant" benefits in the nature of medical care.
The benefits under the EAP cannot be coordinated with benefits offered under another group health plan. The Departments proposed three criteria to meet this standard:
1.Participants are not required to exhaust EAP benefits before eligibility for benefits under the primary plan.
2. Eligibility for EAP benefits must not be conditioned on participation in another group health plan.
3.The EAP is not financed by another group health plan.
Employees do not have to pay a premium to participate in the EAP.
The EAP does not require any cost sharing.
In response to many questions from EAPA and the EA field, the U.S. Department of Labor on Friday, September 13, 2013 issued guidance regarding whether EAP benefits to employees fall under Affordable Care Act requirements. DOL’s guidance says, “The Departments intend to amend 26 C.F.R. §54.9831-1(c), 29 C.F.R. §2590.732(c), and 45 C.F.R. §146.145(c) to provide that benefits under an employee assistance program or EAP are considered to be excepted benefits, but only if the program does not provide significant benefits in the nature of medical care or treatment. Excepted benefits are not subject to the market reforms and are not minimum essential coverage under Code § 5000A. Until rulemaking is finalized, through at least 2014, the Departments will consider an employee assistance program or EAP to constitute excepted benefits only if the employee assistance program or EAP does not provide significant benefits in the nature of medical care or treatment. For this purpose, employers may use a reasonable, good faith interpretation of whether an employee assistance program or EAP provides significant benefits in the nature of medical care or treatment.” READ MORE HERE.
Recent Journal of Employee Assistance (JEA) articles on Social Policy Issues including the Affordable Care Act
(Note: These articles are accessible to EAPA members only in our JEA Online Archive)
Vol. 43 no. 3 - 3rd Quarter 2013
Legal Lines: EAPs Respond to HIPAA Rules - Sandra G. Nye, J.D., MSW
Vol. 43 no. 2 - 2nd Quarter 2013
Legal Lines: New HIPAA Final Rule - Sandra G. Nye, J.D., MSW
Vol. 42 no. 4 - 4th Quarter 2012
Legal Lines - EAPs & the Affordable Care Act - Sandra G. Nye, J.D., MSW
EAPs and W2 Reporting - The IRS issued revised Form W-2 reporting requirements in Notice 2012-09. Not only did the IRS exempt on-site clinics, the IRS also exempted all wellness programs and all EAPs, as long as the employer does not charge a premium for this coverage.
Information About SBCs
Guidelines for the Summary of Benefits and Coverage (SBC) Document as it applies to EAPs
Recent Articles About US Parity Regulations
The departments of Health and Human Services, Labor and the Treasury came out with regulations clarifying the parity act. According to some analysts, EAPs cannot serve as gatekeepers, unless a similar form of management is applied to medical benefits. Also employers cannot require employees to exhaust EAP benefits before they access mental health care if a similar requirement does not exist for accessing medical care. Many other experts have weighed in.
On November 8, 2014, the U.S. Departments of Health and Human Services, Labor and the Treasury jointly issued a final rule increasing parity between mental health/substance use disorder benefits and medical/surgical benefits in group and individual health plans. The final rule implements the Mental Health Parity and Addiction Equity Act (MHPAEA) and ensures that health plans features like co-pays, deductibles and visit limits are generally not more restrictive for mental health/substance abuse disorders benefits than they are for medical/surgical benefits. The final rules also include specific additional consumer protections, such as:
Ensuring that parity applies to intermediate levels of care received in residential treatment or intensive outpatient settings;
Clarifying the scope of the transparency required by health plans, including the disclosure rights of plan participants, to ensure compliance with the law;
Clarifying that parity applies to all plan standards, including geographic limits, facility-type limits and network adequacy; and
Eliminating the provision that allowed insurance companies to make an exception to parity requirements for certain benefits based on "clinically appropriate standards of care," which clinical experts advised was not necessary and which is confusing and open to potential abuse.
The Affordable Care Act builds on the MHPAEA and requires coverage of mental health and substance use disorder services as one of ten essential health benefits categories. Under the essential health benefits rule, individual and small group health plans also are required to comply with these parity regulations. Read more HERE. The final rules may be viewed HERE. A fact sheet on the rules is available HERE.