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On January 30, 2023, the Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury (collectively, the Departments) released proposed rules with comment period entitled “Coverage of Certain Preventive Services Under the Affordable Care Act.” These proposed rules would amend regulations regarding coverage of certain preventive services under the Affordable Care Act (ACA), which, consistent with guidelines supported by the Health Resources and Services Administration (HRSA), generally require non-grandfathered group health plans and non-grandfathered group or individual health insurance coverage to cover certain contraceptive services without cost sharing. Current regulations include exemptions for group health plans, institutions of higher education arranging student health insurance coverage, health insurance issuers, and individuals with religious or moral objections from providing (or in the case of individuals, purchasing or enrolling in) coverage of contraceptive services. The current regulations also provide an optional accommodation for such group health plans and sponsors of student health insurance coverage that allows objecting employers and colleges and universities to 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.
The proposed rules would leave in place the existing religious exemption for entities and individuals with objections, as well as the optional accommodation for contraception, while also establishing a new pathway—referred to as an individual contraceptive arrangement—that individuals enrolled in plans or coverage sponsored, arranged, or provided by objecting entities that are not eligible for or have not opted for the existing accommodation may use to obtain contraceptive services at no cost directly from a willing provider or facility that furnishes contraceptive services. The individual contraceptive arrangement would not require any involvement on the part of an objecting entity. Under the HHS proposed rules, a provider or facility that furnishes contraceptive services in accordance with the individual contraceptive arrangement for eligible individuals would be able to be reimbursed for its costs by entering into an arrangement with an issuer on a Federally-facilitated Exchange (FFE) or State-based Exchange on the Federal platform (SBE-FP), which in turn would seek an Exchange user fee adjustment. These proposed rules also would rescind the moral exemption rule.
Background – Contraceptive Coverage and the Need for Greater Protections
The ACA requires non-grandfathered group health plans, and non-grandfathered group and individual health insurance coverage, to cover certain preventive services without cost sharing, including benefits for certain women’s preventive health services as provided for in comprehensive guidelines supported by HRSA. Those guidelines include a broad array of women’s contraceptive services. Under the Departments’ 2018 final regulations, group health plans (and health insurance coverage provided in connection with such plans) of all nonprofit and most for-profit employers and plan sponsors with sincerely held religious or moral objections to contraceptive coverage are eligible for exemptions from the contraceptive coverage requirement, as are all private universities and colleges with religious or moral objections, with respect to arrangement of student health insurance coverage. Additionally, health insurance issuers with such objections are exempt from the contraceptive coverage requirement with respect to group or individual health insurance coverage.
Under the 2018 final regulations, sponsors of group health plans and institutions of higher education that qualify for a moral or religious exemption to contraceptive coverage may voluntarily avail themselves of an accommodation. Under the accommodation, the objecting entity does not have to contract, arrange, pay, or refer an individual for contraceptive coverage, yet contraceptive services are still available for individuals enrolled in the health plan of the organization, at no cost to the individual or to the organization. To elect the optional accommodation, the sponsor of the group health plan or institution of higher education may either fill out a form describing its objection to its issuer or third-party administrator, or notify the Federal government of its objection. Upon doing so, the plan or coverage is not required to cover contraceptive services. The plan’s issuer or third-party administrator instead provides or arranges separate payments for contraceptive services for the individual in the health plan of the organization, at no additional cost to the employee, the student, or the organization. In the case of a self-insured group health plan sponsored by an entity with a moral or religious objection, the plan’s third-party administrator can enter into an agreement with a health insurance issuer on an FFE or SBE-FP to obtain reimbursement for such contraceptive payments, and the issuer would receive a reduction to its FFE or SBE-FP user fees.
The accommodation is completely optional. When an objecting entity does not invoke the optional accommodation, individuals enrolled in the health plan of the objecting entity do not have access to contraceptive coverage without cost sharing through the plan or its contracted issuer. This is also true where an issuer in the individual market does not cover contraceptive services based on a religious or moral objection, because the accommodation is not available to such issuers.
Section 2713(a)(4) of the Public Health Service Act, also known as the Women’s Health Amendment, was enacted as part of the ACA to ensure that group health plans and health insurance issuers cover women’s preventive health needs. Access to contraception is an essential component of women’s health care in part because contraception is effective at reducing unintended pregnancy. Without health insurance or other health coverage for or access to contraception at no cost, contraception can be prohibitively expensive,and the cost may deter individuals from obtaining needed care. Further, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization allows for state laws that significantly restrict abortion, placing a heightened importance on access to contraceptive services nationwide. Ensuring access to contraception services with no cost sharing is a national imperative, as it is a means to prevent unintended pregnancies and help provide better health and economic outcomes for women, so that they can exercise control of their reproductive health and family planning decisions.
Summary of Proposed Rules
These proposed rules would further the government’s interest in protecting women’s health and their right to make reproductive decisions, while respecting religious objections to contraceptive coverage.
These proposed rules would provide a new independent pathway through which individuals enrolled in plans or coverage sponsored or arranged by objecting entities that have not opted for the existing accommodation (including those enrolled in individual health insurance coverage issued by such an objecting entity) could access contraceptive services at no cost. Specifically, these proposed rules 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. 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.
Through the individual contraceptive arrangement, a willing provider of contraceptive services would provide these services at no cost to individuals receiving them. The provider would be able to seek reimbursement for its costs from a participating qualified health plan (QHP) issuer in the FFE or SBE-FP with whom it has a signed agreement. To implement this, these proposed rules would amend current regulations so that an FFE or SBE-FP issuer that has agreed to reimburse a provider of contraceptive services that participates in the individual contraceptive arrangement would be eligible for an adjustment to the issuer’s FFE or SBE-FP user fee. This is the same user fee adjustment mechanism that currently exists for third party administrators in connection with the optional accommodation for self-insured group health plans.
These proposed rules, if finalized, would rescind the moral exemption to covering contraceptive services without cost sharing, while keeping intact the religious exemption and without narrowing its scope or the types of entities or individuals that may claim the religious exemption. These proposed rules would also maintain the optional accommodation for sponsors of group health plans and institutions of higher education arranging student health insurance coverage that qualify for the religious exemption.
Comment Period
Written comments must be received by 5 p.m. 60 days after publication in the Federal Register to be considered.
Visit https://www.federalregister.gov/public-inspection/2023-01981/coverage-of-certain-preventive-services-under-the-affordable-care-act to read more about the proposed rules.
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