ADMINISTRATION RELEASES NEW RULES ON CONTRACEPTION COVERAGE

The Internal Revenue Service, the Employee Benefits Security Administration and the Centers for Medicare & Medicaid Services have released a set of interim final regulations and a set of proposed regulations related to coverage for recommended contraceptive services.  Under the Affordable Care Act, these services should be provided at no cost, with certain exceptions related to religious organizations.

The first administration action maintains the existing accommodation for certain religious non-profits, but also creates an additional pathway for eligible organizations to provide notice of their objection to covering contraceptive services.  In addition, the Administration is soliciting comment on how it might extend to certain closely held for-profit companies the same accommodation that is available to non-profit religious organizations.

In July 2013, the Administration published final rules providing women with coverage for recommended preventive care, including all Food and Drug Administration-approved contraceptive services prescribed by a health care provider, without cost-sharing, while providing an accommodation for certain non-profit religious employers that object to contraceptive coverage on religious grounds so that they do not have to contract, arrange, pay, or refer for such coverage for their employees or students.

The rules address both non-profits and closely held for-profit entities:

  • The interim final regulations lay out an additional way for organizations eligible for an accommodation to provide notice of their religious objection to providing coverage for contraceptive services.  The rule allows these eligible organizations to notify the Department of Health and Human Services (HHS) in writing of their religious objection to providing contraception coverage.  HHS and the Department of Labor (DOL) will then notify insurers and third party administrators (TPA) so that enrollees in plans of such organizations receive separate coverage for contraceptive services, with no additional cost to the enrollee or the employer.  The interim final rule solicits comments, but went into effect upon publication.
  • The Administration also issued a proposed rule soliciting comments on how it might extend to certain closely held for-profit entities, like Hobby Lobby, the same accommodation that is available to non-profit religious organizations.  Under the proposal, these companies would not have to contract, arrange, pay or refer for contraceptive coverage to which they object on religious grounds.  The proposal seeks comment on how to define a closely held for-profit company and whether other steps might be appropriate to implement this policy.

The interim final regulations amend the Departments’ July 2013 final regulations to provide an alternative process for the sponsor of a group health plan or an institution of higher education to provide notice of its religious objection to coverage of all or a subset of contraceptive services, as an alternative to the EBSA Form 700 method of self-certification.  The interim final regulations continue to allow eligible organizations to use EBSA Form 700.

The alternative process permitted by these interim final regulations is consistent with the Wheaton order.  It provides that an eligible organization may notify HHS in writing of its religious objection to coverage of all or a subset of contraceptive services.  The notice must include the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type (i.e., whether it is a student health insurance plan or a church plan); and the name and contact information for any of the plan’s TPAs and health insurers.  A model notice to HHS that eligible organizations may, but are not required to, use is available at:
http://www.cms.gov/cciio/resources/Regulations-and-Guidance/index.html#Prevention.  If there is a change in any of the information required to be included in the notice, the organization must provide updated information to HHS.

Nothing in this alternative notice process requires a government assessment of the sincerity of the religious belief underlying the eligible organization’s objection.

When an eligible organization that establishes or maintains or arranges a self-funded plan subject to ERISA provides such a notice to HHS, DOL (working with HHS) will send a separate notification to each TPA of the ERISA plan.  DOL’s notification will inform each TPA of the eligible organization’s religious objection to funding or administering some or all contraceptive coverage and will designate the relevant TPA(s) as plan administrator under ERISA for those contraceptive benefits that the TPA would otherwise manage.  The DOL notification will be an instrument under which the plan is operated and shall supersede any earlier designation.

If an eligible organization that establishes or maintains an insured health plan provides a notice to HHS, HHS will send a separate notification to the plan’s health insurer(s) informing the insurer(s) that HHS has received a notice under and describing the obligations of the insurer(s).  Insurers remain responsible for compliance with the statutory and regulatory requirement to provide coverage for contraceptive services, notwithstanding that the policyholder is an eligible organization with a religious objection to contraceptive coverage.

In light of the Supreme Court’s decision in Hobby Lobby, the Departments propose to amend the definition of an eligible organization to include a closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services.  Under these proposed rules, a qualifying closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered would not be required to contract, arrange, pay or refer for contraceptive coverage. Instead, payments for contraceptive services provided to participants and beneficiaries in the eligible organization’s plan would be provided separately by an insurer or arranged separately by a TPA.  This proposed change would extend to participants and beneficiaries in group health plans established or maintained by certain closely held for-profit entities with religious objections to contraceptive coverage, and to enrollees and dependents enrolled in student health insurance coverage arranged by certain closely held for-profit entities that are institutions of higher education with religious objections to contraceptive coverage, the same, separate payments for contraceptive services provided to participants and beneficiaries of group health plans (and enrollees and dependents in student health insurance) established or maintained by certain nonprofit religious entities with such objections.

For more information about the Hobby Lobby case, see https://dmeclegal.wordpress.com/2014/06/30/some-corporations-exempt-from-contraceptive-mandate/#more-1545.

For more information about the Wheaton order, see https://dmeclegal.wordpress.com/2014/07/08/supreme-court-issues-injunction-in-another-contraceptives-case/#more-1551.

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