The Affordable Care Act (ACA) was enacted to provide health insurance consumers a number of protections in order to ensure access to meaningful and affordable health insurance. One of these protections, the Essential Health Benefits (EHB) rule, requires individual and small group health plans both inside and outside of the health insurance Marketplaces to cover 10 “essential” categories of benefits. Pre-ACA, it was not uncommon for consumers to enroll in a health plan and then find it didn’t actually cover some very basic health care services (like maternity care). This was particularly true of plans on the individual market. The ACA requires health plans to meet minimum benefit standards. One of those minimum standards is that plans must cover prescription drugs.

Already, however, insurers have found creative ways to reduce their exposure to prescription drug costs. For example, Blue Cross Blue Shield of Mississippi has recently announced that it will only pay prescription drug costs if they are prescribed by an in-network physician. If someone has to go out-of-network for care and gets a prescription, the plan will no longer cover the cost of those drugs. If this policy is actually instituted, which BCBS says it has yet to do, it could mean huge unexpected out of pocket costs for plan participants getting prescriptions from out-of-network providers.

A provision like this penalizes patients who go to out-of-network providers to get the care they need. This could have a particular impact on people with certain health conditions, such as those who need mental health services. For example, fewer and fewer psychiatrists are taking insurance. A recent study found that only 55 percent of psychiatrists accept private insurance, compared with 89 percent of other doctors. With high retail costs for commonly prescribed psychiatric drugs, (e.g. upwards of $1,000 a month for Abilify, a drug used to treat depression) many patients would be forced to stop treatment.

Does the ACA allow for such an outcome? It appears that it may. Per the EHB rule, individual and small group plans must cover at least the greater of one drug in every U.S. Pharmacopeia category and class or the same number of prescription drugs in each category and class as the EHB benchmark plan the state in which the plan is operating has chosen to use. The EHB rule also requires health plans to have procedures in place to “allow an enrollee to request clinically appropriate drugs not covered by the health plan.” So, the EHB rule requires health plans to cover certain types of drugs and provides plan participants with a way to petition for coverage of drugs not included in the plan’s formulary. But the federal rule is silent on whether a provision like BCBS of Mississippi’s is permissible under the ACA.  The state of Mississippi could move to prohibit the practice, and legislators there recently debated such a bill. However, that bill died in committee earlier this week. BCBS of Mississippi has said they will not implement the policy before the Mississippi Department of Insurance has reviewed it.

For now, it appears BCBS of Mississippi plan participants will continue to get coverage for drugs prescribed by out-of-network providers. This does not mean, however, that plan participants can rest easy. It is unclear whether BCBS of Mississippi’s policy is an isolated approach to cutting costs or whether this could become a trend among insurers. Whether it is this particular provision or something else, consumers should be on the lookout for future attempts by insurance companies to restrict “covered” benefits in what are supposed to be more comprehensive post-ACA health plans.