October 10, 2017
Administration Expands Contraceptive Mandate Exemptions

Late last week, the Trump administration announced new policies that will allow more employer health plan sponsors to opt out of the Affordable Care Act (ACA) contraceptive coverage mandate on the basis of religious or moral objections. The changes, which take effect immediately, were released jointly by the Internal Revenue Service and Departments of Labor and Health and Human Services (“the Departments”) in  interim final rules regarding Religious Exemptions and Accommodations and Moral Exemptions and Accommodations for coverage of certain preventive services under the ACA.

Background

The ACA requires that non-grandfathered health plans provide coverage without participant cost sharing for preventive care services recommended by the U.S. Preventive Care Task Force with a rating of A or B, immunizations recommended by the CDC Advisory Committee on Immunization Practices, and children’s and women’s care guidelines supported by HHS. The guidelines adopted by HHS related to women’s preventive care include coverage of all FDA-approved contraceptive methods.

The contraceptive mandate has long been opposed by religious organizations and has been the subject of litigation for several years. In response, the Obama administration introduced regulations that grant an exception to the mandate for houses of worship and religious orders and grant an accommodation for religiously-affiliated non-profit groups and closely-held for-profit entities with religious objections to providing coverage for some or all contraceptive services. Under the accommodation, the employer is exempt from contracting, providing, paying or referring for such services, but coverage must still be made available at no cost to participants by the plan insurer or TPA.

New Rules

• The newly issued rules broaden the contraceptive mandate exemption to include a much wider array of non-governmental employers:
  • Houses of worship and religious orders, non-profit organizations, for-profit entities, institutions of higher learning (in their arrangement of student health plans), and any other non-governmental employers that object based on sincerely held religious beliefs are exempt.
  • Non-profit organizations, for-profit entities that have no publicly traded ownership interests, and institutions of higher learning (in their arrangement of student health plans) that object based on sincerely held moral convictions but not religious beliefs are exempt.

• The existing accommodation is changed to an optional process available to exempt organizations that choose it.
• Plan sponsors are permitted to offer a separate benefit option to any individual who objects to having coverage for contraceptive services based on sincerely held religious beliefs or moral convictions; however, plan sponsors are not required to do so.

Relatively speaking, the new rules may have limited impact, as a majority of employers have no objections to covering birth control. According to a study commissioned by the Obama administration, more than 55 million women have access to birth control without co-payments because of the contraceptive coverage mandate. The approximately 200 employers that have been involved in suing the government over the mandate account for about 120,000 female health plan members.

Advocates for religious groups view the new rules as a big step forward in the years-long legal fight over contraceptive coverage. Women’s health and civil rights advocates, on the other hand, are voicing strong opposition to the new rules and are poised to take legal action of their own to try to block the changes. The American Civil Liberties Union filed a suit in federal court on Friday challenging the rules and the National Women’s Law Center and attorneys general in California and Massachusetts have already indicated they intend to do the same. Trion will continue to monitor the debate and update you as new developments occur.

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We are here to answer any questions you might have as you prepare to comply with upcoming ACA requirements. If you are not currently a Trion client and would like assistance navigating the changes required by health care reform, please contact us today by emailing   MBGray@Trion.com

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