DOL POSTS FAQ REGARDING CONTRACEPTIVES COVERAGE CUTBACKS

The Department of Labor (DOL) has posted a new question and answer on its website regarding closely held corporations that wish to stop providing contraceptive coverage as a result of the Supreme Court’s Hobby Lobby decision.  The entire question and answer, with introduction, is copied below:

FAQs about Affordable Care Act Implementation (Part XX) July 17, 2014 Set out below is an additional Frequently Asked Question (FAQ) regarding implementation of the Affordable Care Act.  This FAQ has been prepared by the Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Departments).  Like previously issued FAQs (available at http://www.dol.gov/ebsa/healthreform/), this FAQ answers a question from stakeholders to help people understand the law and benefit from it, as intended.

Disclosure with respect to Preventive Services

Q: My closely held for-profit corporation’s health plan will cease providing coverage for some or all contraceptive services mid-plan year. Does this reduction in coverage trigger any notice requirements to plan participants and beneficiaries?

Yes.  For plans subject to the Employee Retirement Income Security Act (ERISA), ERISA requires disclosure of information relevant to coverage of preventive services, including contraceptive coverage.  Specifically, the Department of Labor’s longstanding regulations at 29 CFR 2520.102-3(j)(3) provide that, the summary plan description (SPD) shall include a description of the extent to which preventive services (which includes contraceptive services) are covered under the plan.  Accordingly, if an ERISA plan excludes all or a subset of contraceptive services from coverage under its group health plan, the plan’s SPD must describe the extent of the limitation or exclusion of coverage.  For plans that reduce or eliminate coverage of contraceptive services after having provided such coverage, expedited disclosure requirements for material reductions in covered services or benefits apply.  See ERISA section 104(b)(1) and 29 CFR 2520.104b-3(d)(1), which generally require disclosure not later than 60 days after the date of adoption of a modification or change to the plan that is a material reduction in covered services or benefits.  Other disclosure requirements may apply, for example, under State insurance law applicable to health insurance issuers.

For more information on the Supreme Court decision, see https://dmeclegal.wordpress.com/2014/06/30/some-corporations-exempt-from-contraceptive-mandate/#more-1545.  

The FAQ only refers to the SPD requirements and the summary of material reduction (SMR) requirements that have been in place for many years.  Arguably, the new 60-day advance notice of mid-year plan changes that was part of the Affordable Care Act would also apply.  For employee relations purposes, advance notice of plan changes, particularly reductions, is advisable.

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