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HHS Provides Additional Guidance on Health Plan Coverage of Contraceptive Services by Nonprofit Religious Employers

by Amy Gordon and Susan Nash

The Patient Protection and Affordable Care Act (PPACA) requires non-grandfathered group health plans to provide coverage for certain preventive services on a first dollar basis (i.e. without deductibles, co-payments, co-insurance or other cost-sharing).  Interim final regulations provide an exemption for a very narrow subset of religious employers with respect to coverage of contraceptive services.  To qualify for the exemption the entity must be a nonprofit religious employer that offers insurance to its employees.  Many entities affiliated with religious institutions, such as hospitals and universities, do not meet this narrow exception.

Now, the U.S. Department of Health and Human Services (HHS) has provided additional guidance for nonprofit employers that do not cover contraceptive services under their current plans because of religious beliefs and that do not fit within the previous exemption.  These employers will have an additional year, until August 1, 2013, to comply with the new law.  Employers wishing to take advantage of the additional year will have to certify that they are eligible for this delayed implementation.  The announcement also indicates that employers that do not offer coverage of contraceptive services will be required to provide notice to employees stating that such services are available with income-based support at sites such as community health centers, public clinics and hospitals.

New Guidelines Issued on Preventive Services for Women, Including Religious Employer Exception

by Amy M. Gordon, Susan M. Nash and Jamie A. Weyeneth

The U.S. Departments of Treasury, Labor, and Health and Human Services recently released joint guidance regarding mandatory coverage of contraceptive services for women under the preventive services requirements of health care reform.  The new guidance coincides with the issuance of expanded preventive care coverage requirements for women released by the Health Resources and Services Administration (HRSA).

Health care reform requires non-grandfathered group health plans and health insurance issuers to provide first-dollar coverage of certain preventive services furnished by in-network providers.  The preventive services coverage requirements are based on recommendations of the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention, and HRSA.  In addition, HRSA was charged with developing additional preventive care and screening guidelines for women.  HRSA commissioned the Institute of Medicine (IOM) to help to identify gaps in preventive care services already required under health care reform.

When the IOM released its recommendations in mid-July 2011, concerns about the inclusion of contraceptive services were raised by religious organizations.  The regulators determined it would be appropriate to take into account the religious beliefs of religious employers and issued guidance providing for limited religious accommodation.  Specifically, the interim final regulations on mandatory preventive care were revised to permit HRSA to create an exception for group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services.  A religious employer is one that has the inculcation of religious values as its purpose; primarily employs persons who share its religious tenets; primarily serves persons who share its religious tenets; and is a nonprofit organization under Section 6033(a)(1) and Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.  The regulators noted this approach is consistent with most states that require coverage of contraceptive services under state insurance laws.  The final guidelines released by HRSA on August 1, 2011, include this exception for religious employers.

Click here to view the new women’s preventive services guidelines issued by HRSA.  Recommended preventive services issued after September 23, 2009, are effective as of the first day of the first plan year/policy year beginning on or after the one-year anniversary of the date the recommendation is issued.  Therefore, these new guidelines (including the religious employer exception) will apply for plan years/policy years beginning on or after August 1, 2012.




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