August 01, 2015

Discovering Little-Known Provisions of the Affordable Care Act

Stephen Angelette

Tired of arguing about overly politicized portions of healthcare reform? While the provisions of the Patient Protection and Affordable Care Act (PPACA) (Pub. L. No. 111-148 (2010))as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152)worthy of the Supreme Court are well known, there were a host of new and interesting programs unrelated to the individual mandate, employer mandate, and Medicaid expansion that have taken effect at various times over the last five years. The following are some of the more interesting and little-known provisions of the law and how they are being implemented.

Indoor Tanning Tax

On July 1, 2010, the “Snooki Tax” took effect (Section 5000B of PPACA). This provision placed a 10 percent tax on tanning salons. The tax was a last-minute addition to PPACA, swapped in by Senate Democrats in place of a cosmetic surgery tax (nicknamed the Bo-Tax) only a few days prior to the passage of the law. The government has collected upward of $200 million, but it has been difficult for the IRS to identify many businesses providing tanning services because there is no centralized database of such organizations.

Privacy Breaks for Nursing Mothers

Section 4207 of PPACA amended the Fair Labors Standards Act to require employers with fifty or more employees to provide a private location (other than a bathroom) that is free from intrusion at their worksites where nursing mothers “can express breast milk” for their nursing child for one year after the child’s birth each time the employee has a need to express the milk. Employers must also provide employees with “a reasonable break time” to do this, though employers are not required to pay their employees during these nursing breaks.

The Actual Cost of Your Insurance Will Appear on Your Tax Forms

To promote awareness of healthcare costs by employees, PPACA requires that employers disclose the full cost of insurance coverage (both the employer and the employee share) on the W-2 Wage and Tax Statement. For those who do not have employer-sponsored insurance and choose not to purchase health insurance without qualifying for an exemption, the amount of the penalty owed for failure to obtain health insurance will be calculated and displayed as part of their tax return.

Encouragement of Telemedicine

PPACA contains several provisions that address telemedicine, including encouragement for exploration of care models and payment systems for facilitating care provided remotely. Various states have responded to this directive by focusing on their own laws related to telemedicine, with some states choosing to become more restrictive and some expanding the ability to provide medical care over telephone and video conference, among other remote methods of providing medical care.

Abstinence Education

Section 2954 of PPACA authorized funding through 2014 for states to provide abstinence-only sex education programs that teach students abstinence is “the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems.” Federal funding for these programs expired in 2003, but was revitalized by PPACA. While the Obama Administration has proposed to cut money from the program each year since 2010, Congress has insisted that the funds stay in place

Smoking Cessation Treatment Must Be Provided by Private Insurers with No Co-Pay

To comply with PPACA preventive services requirements, private health insurance plans must cover tobacco use counseling and interventions (Section 2713). For example, the health insurance company must cover screening for tobacco use and two quit attempts per year, consisting of: four sessions of telephone, individual, and group cessation counseling lasting at least ten minutes each per quit attempt, and all medications approved by the FDA as safe and effective for smoking cessation, for ninety days per quit attempt, when prescribed by a health care provider. The Department of Labor has mandated that health plans may not include cost-sharing for these treatments and that plans should not require prior authorization.

Restaurant Chains Must Post Calorie and Nutrition Labels on Their Menus

PPACA amended the Federal Food, Drug, and Cosmetic Act to require restaurants and similar retail food establishments that are part of a chain with twenty or more locations, doing business under the same name and offering for sale substantially the same menu items, to provide calorie and other nutrition information for standard menu items, including food on display and self-service food (Section 4205). Beginning in December 1, 2015, such establishments must post the calorie information in each food item on their menus. The regulations will apply not only to menus and menu boards at sit-down and fast-food restaurants, but also to other retail food establishments with twenty or more locations, such as convenience stores and movie theaters. Even some prepared foods sold in supermarkets will be covered.

Foster Children Can Receive Medicaid until They Reach Twenty-Six Years Old

Effective January 1, 2014, all states were required to expand Medicaid coverage to age twenty-six for all youth who are enrolled in Medicaid and in foster care on their eighteenth birthday, or enrolled in Medicaid when they aged out of foster care if over age eighteen (Section 1001). Youth who aged out in the past several years and are not yet age twenty-six are covered immediately, and youth currently in foster care are covered when they age out.

Insurance Offered across State Lines?

Beginning January 1, 2016, states are allowed to form “insurance compacts” allowing consumers from different states to purchase insurance cross-border (Section 1333). States joining a compact would be required to pass legislation authorizing that decision and receive approval from the U.S. Department of Health and Human Services.

Ability for Health Care Providers to Share Savings with Payors and Receive Payment for Quality

PPACA ushered in multiple concepts of “coordinated care,” included Accountable Care Organizations and Patient-Centered Medical Homes, which encourage and reward health care providers that manage and coordinate care for patients across the entire spectrum of care for those patients (preventative, acute, and post-acute care). Such rewards include the ability to share in a percentage of the savings created by such efficient care when the health care provider meets certain quality measures and higher reimbursement for such measures.

PPACA not only made major modifications to the provision of health care and health insurance, but also enacted a myriad of changes to our everyday lives in American society, whether it be the cost of tanning or the ability to see the calories that we are consuming at a chain restaurant and how much our employer is paying for our health insurance. As the law reaches its fifth anniversary, it will be interesting to see how these lesser-known pieces of the law mature.

Stephen Angelette

Stephen Angelette is an associate specializing in healthcare at the Dallas office of Polsinelli PC.