The Department of Labor, the Department of Health and Human Services, and the IRS (the “Agencies”) have issued proposed regulations that would expand access to contraceptive care coverage.
Background. Under the ACA’s preventive services requirements, non-grandfathered employer-sponsored group health plans must provide participants and beneficiaries with certain contraceptive services at no out-of-pocket cost. Pursuant to this mandate, employer-sponsored group health plans must cover all FDA-approved contraception, which includes medications and devices that may act as abortifacients as well sterilization procedures.
However, the regulations provide certain employers with two grounds for claiming an exemption from the contraceptive services mandate. One rule provides the exemption on the basis of sincerely-held religious beliefs and the other on the basis of sincerely-held moral convictions. While the exemption is available to both non-profit and for-profit employers, the “moral convictions” exemption may only be claimed by nonprofit employers and for-profit employers that are not publicly traded. The exemption is also available to private colleges and universities for their student health plans.
The current exemption also allows objecting employers to completely remove themselves from providing birth control coverage while ensuring women and covered dependents enrolled in their plans can access contraceptive services at no additional charge. Under the current rules, employees and beneficiaries have access to contraceptive services at no cost only if the objecting employer has voluntarily elected the accommodation.
Proposed Regulations. The proposed rules would rescind the moral exemption rule, but would leave in place the existing religious exemption, as well as the voluntary accommodation for coverage election.
However, the proposal would create a mechanism, independent from the employer, group health plan, plan sponsor, institution of higher education, or issuer, through which individuals could obtain contraceptive services at no cost from a willing provider of contraceptive services when the employer does not elect the optional accommodation.
The individual contraceptive arrangement would not require any involvement on the part of an objecting entity. Under the proposal, a provider that furnishes contraceptive services in accordance with the individual contraceptive arrangement would be reimbursed through a contract with an ACA Exchange.
The Agencies noted that, “This individual contraceptive arrangement would be available to the participant, beneficiary, or enrollee without the objecting entity having to take any action facilitating the coverage to which it objects. Simply put, the action is undertaken by the individual, on behalf of the individual.”
The proposed regulations are available at: https://www.federalregister.gov/public-inspection/2023-01981/coverage-of-certain-preventive-services-under-the-affordable-care-act