On January 30, 2023, the Department of Health and Human Services (HHS), Labor and Treasury (jointly herein referred to as “Departments”) released a Proposed Rule that would expand the existing mandate for health plans to cover certain preventive services (as defined by US Preventive Task Force) to include birth control. To-date, pursuant to the Affordable Care Act (ACA) most health plans are required to offer coverage for birth control with no out-of-pocket cost (e.g., copays and deductibles), with the ability for employer – plan sponsors of self-funded health plans to opt-out of the ACA mandate to provide contraception due to moral or religious objection. If this proposed rule is finalized (be sure you are subscribed to the Leavitt Group news alerts for notification of that change and it impact on your health plan(s)), the moral objection exemption created in the 2018 final regulations under the Trump Administration, will essentially go away. The religious exemption will remain.
There is an optional accommodation available for objecting employers, private colleges and universities to completely remove themselves from providing birth control coverage while ensuring free-of-charge access to those enrolled in their health plans. This pathway would allow access to any willing contraception provider without cost even where the employer, plan or insurer has a religious objection. But to access this independent pathway, the plan or employer must elect this accommodation option. This new proposalwill change the roadblock in the equation.
The Departments also issued clarifying guidance related to the protections for birth control under the ACA following the multiple states’ efforts to restrict access to contraception in the wake of the Supreme Court of the United States (SCOTUS) decision overturning Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization. See below links.
The U.S. Supreme Court’s decision in Dobbs has placed a heightened importance on access to contraceptive services nationwide. HHS released a report in August on actions taken to ensure access to reproductive health care, including contraception, following the Supreme Court’s ruling, with further details on future actions and commitments. Read the report “Secretary’s Report: Health Care Under Attack: An Action Plan to Protect and Strengthen Reproductive Care – PDF.”
For more information on the proposed rules, consult the fact sheet available at https://www.cms.gov/newsroom/fact-sheets/coverage-certain-preventive-services-under-affordable-care-act-proposed-rules.
To review or comment on the proposed rules during its 60-day public comment period, visit the Federal Register.
In addition, HHS also recently released a report entitled: “Marking the 50th Anniversary of Roe: Biden-Harris Administration Efforts to Protect Reproductive Health Care,” which outlines the actions HHS has taken in the face of the health crisis precipitated by the Dobbs decision.