Update on the Women’s Contraceptive Coverage Regulations

Submitted by Carol Taylor, Account Executive and Compliance Officer, Kirby Employee Benefits, Jupiter, FL

Since the passage of the Affordable Care Act in 2010, the coverage for preventive care has been a changing landscape. There have been numerous changes to the U.S. Preventive Services Task Force ratings for A & B recommended evidence-based items or services.

Among the requirements, FDA-approved contraception methods and contraceptive counseling at no cost-sharing to the insured (when provided by a network provider) has also seen a number of changes in guidance.

Since the release of final regulations in June 2013, to be effective as of the 2014 plan year, there was an exemption for religious employers from providing the coverages for contraception if they have a religious objection to doing so. The religious employer was defined as those listed in the Internal Revenue Code 6033(a)(3)(A)(i) or (iii), which are churches, their integrated auxiliaries, conventions or associations of churches, or any religious order.

The religious exemption allowed those non-profit employers to not be required to offer, contract, refer or pay for contraceptive coverage, which was to be done through a self-certification to their carrier or administrator, as well as the Department of Health & Human Services. The insurance carrier or administrator is then required to notify plan participants that no-cost contraception would be available to them, and with rules released in August of 2014, that HHS would arrange for the insurer or TPA to provide those.

The landscape changed again in June 2014 with the U.S. Supreme Court decision in Burwell v. Hobby Lobby et. al., which expanded the religious exemption to closely held corporations with strong religious objections to covering contraceptives. These employers were to use the same methods of certifying that the non-profit religious employers were using.

Fast-forward to November 2018 when the two latest revisions were released, allowing for expanded religious or moral objection to covering contraceptive methods, including certain ones that may be viewed as abortifacients and/or sterilization procedures.

The first rule provides an exemption to entities and individuals that object to services covered by the mandate on the basis of sincerely held religious beliefs. They would be exempt from the mandate and no longer required to provide contraceptive coverage, in full or in part. The rules under this section maintain the availability of the accommodation, where the insurer or the administrator is responsible for providing those services to the plan participants, but it would be voluntary at the option of the employer. They would also be able to offer those methods they did not object to, but could exclude those for which they have objections.

The second rule gives nonprofits, small businesses and individuals with non-religious moral convictions opposed to those services similar protections to those with religious objections.

For individuals with religious or moral objections with either employer-sponsored or individual market coverage, the exemption would be allowed where the plan sponsor and/or carrier is willing to offer a plan to them that omits the offending contraceptive coverage.

These new rules were to take effect on January 14, 2019. In last-minute decisions by two different courts, the rules have been delayed. The first court decision came from a federal judge in California on Sunday, January 13, 2019. It suspended the rule from being implemented in 13 states that had filed suit: California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Minnesota, New York, North Carolina, Rhode Island, Washington, Virginia and the District of Columbia. The second court decision came on Monday, January 14, in a separate case brought by Pennsylvania and New Jersey, which prevents the rules from going into effect while the lawsuits are ongoing.

For now, the previous regulations stand until the court cases make their way up the chain, likely headed for the U.S. Supreme Court.

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