Health Care Reform, Preventive Services

Recent HHS Guidance on Contraceptive Coverage and Employers with Religious-based Objections

On August 22, 2012, HHS released guidance to ensure that women will receive coverage for recommended contraceptive services at no additional cost, even if the employer sponsoring the group health plan claims religious-based objections to covering contraceptives.  The HHS guidance included a fact sheet,  and an interim final rule and a proposed rule.

Existing guidance already exempts certain religious organizations (mainly churches) from the requirement to cover contraceptive services for women and provides an accommodation for certain religiously-affiliated organizations.

The new guidance addresses how contraceptive coverage may be provided by group health plans of the following two types of organizations:

  • Non-profit religious organizations: The interim federal regulations (IFR) provide a new method by which eligible non-profit religious organizations can provide notice of their religious objections to providing coverage for contraceptive services.
  • For-profit closely-held corporations:  In response to the Supreme Court decision in Burwell v Hobby Lobby, the proposed regulations solicit comments on two proposed approaches to define for-profit closely-held corporations that would qualify for the accommodation and thus not have to cover contraceptive services directly.

Background

The Affordable Care Act (ACA) requires most non-grandfathered employer group health plans to provide first-dollar coverage of specified “preventive” services when they are provided by an in-network provider.  Examples of preventive services include well-baby exams, immunizations, and “preventive care and screenings” for women. Prior HHS guidance specifies that preventive care for women includes coverage for all FDA-approved contraceptive methods, if recommended by a physician.  There are currently 20 types of FDA-approved contraceptives.

Previously-issued regulations and guidance exempt “religious employers” (such as churches) from this contraceptive mandate, and also provide an “accommodation” to other religiously-affiliated organizations (such as hospitals, universities and schools) that qualify as “eligible organizations.”  Under this accommodation, eligible organizations that self-certify their objections on religious grounds will not be required to contract, arrange, pay or refer for contraceptive coverage, but women enrolled in such group health plans will be provided contraceptive coverage at no cost, and such coverage will be provided and paid for by insurance companies or third-party administrators.  (See Leavitt article on July 10, 2013, at https://news.leavitt.com/health-care-reform/final-regulations-on-womens-contraceptive-coverage-and-obligations-of-religious-organizations/)

The August 2014 Guidance Expands the Accommodation for Non-Profit Religious Organizations

The HHS guidance issued August 22 continues the existing accommodation for certain religious non-profits (which allows them to self-certify their objections on religious grounds), but also creates an alternative method by which such eligible organizations can notify HHS of their objection to covering contraceptive services and qualify for the accommodation.

Under this alternative an eligible organization need not self-certify, but may simply notify HHS in writing of its religious objection to covering contraceptive services. If the plan is insured, HHS will then notify the insurer. If the plan is self-insured, the Department of Labor will notify the TPA. The notification to the insurer or TPA will tell them that the eligible organization objects to providing contraception coverage and that the insurer or TPA is responsible for providing no-cost contraceptive coverage for enrollees in the health plan for as long as they remain enrolled in the health plan. This alternative is effective on the date the interim final rule is published in the Federal Register, although it also solicits comments on the new option. 

The August 2014 Guidance Proposes Two Definitions of For-Profit Closely-Held Corporations

In response to the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the August proposed rules solicit comments on expanding the availability of the accommodation for certain eligible religious organizations to include a closely-held for-profit entity that has a religious objection to providing coverage for some or all contraceptive services. The proposed rules describe two alternative approaches for defining such an entity:

  • The entity could not be publicly traded, and ownership of the entity would be limited to a certain number of owners.
  • The entity could not be publicly traded, and a minimum percentage of ownership would be concentrated among a certain number of owners. The proposed rules solicit public comment on what would be an appropriate number and/or concentration.

The rule also solicits comments on other possible approaches and on how a for-profit closely-held corporation could document and disclose its decision not to provide contraceptive coverage. The proposed rules provide that valid corporate action taken in accordance with the entity’s governing structure, in accordance with state law, stating its owners’ religious objection is sufficient to document that the entity objects to providing contraceptive coverage on religious grounds.

Comments will be accepted for 60 days after the date the proposed rules are published in the Federal Register.

Links to Guidance

August 22 interim final rule and proposed rule:  http://www.ofr.gov/inspection.aspx

August 22 Fact Sheet: http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/womens-preven-02012013.html

The final rules on women’s preventive services coverage: http://www.gpo.gov/fdsys/pkg/FR-2013-07-02/pdf/2013-15866.pdf – Opens in a new window

Fact Sheet on women’s preventive services coverage: http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html – Opens in a new window

Required health plan coverage guidelines for women’s preventive services: http://www.hrsa.gov/womensguidelines – Opens in a new window

The self-certification form for eligible organizations: http://cms.gov/CCIIO/Resources/Forms-Reports-and-Other-Resources/index.html#Prevention