Administration Issues Final Rule on Contraception Coverage

An accommodation for religiously affiliated nonprofits but no religious exemption for private employers

By Stephen Miller, CEBS July 2, 2013

updated 8/26/2014

Update: New Employer Accommodations on Contraceptive Coverage Proposed

Try, try again. Following the U.S. Supreme Court's Burwell v. Hobby Lobby ruling, in August 2014 federal agencies issued a new proposed rule and interim final rule to better accommodate the religious objections of employers to providing their workers with coverage for contraceptive services. A fact sheet on the rules was also released, as was a notice on the revision of the form used to collect information on religious objections to contraceptive coverage. To learn more, see the SHRM Online article Proposed Accommodation for Contraceptive Coverage.

On June 28, 2013, the Obama administration issueda final rule (published in the July 2 Federal Register) and accompanying fact sheeton implementing the Patient Protection and Affordable Care Act’s controversial mandate that employers provide women with coverage for recommended preventive care—including contraceptive services prescribed by a health care provider—with no cost-sharing.

The rule was issued by the Department of Labor's (DOL) Employee Benefits Security Administration (EBSA), the Internal Revenue Service and the Department of Health and Human Services (HHS).

Certain “religious employers,” primarily houses of worship, may exclude contraceptive coverage from their health plans for their employees and their dependents, and a limited accommodation is provided to certain religiously affiliated nonprofit organizations under the final rule. But it does not extend the religious exemption more broadly to private employers who claim that purchasing insurance that covers contraception would violate their religious beliefs.

“The health care law guarantees millions of women access to recommended preventive services at no cost,” said HHS Secretary Kathleen Sebelius, in a press statement. “Today’s announcement reinforces our commitment to respect the concerns of houses of worship and other nonprofit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work.”

The final rule lays out the accommodation for “other nonprofit religious organizations,” such as nonprofit religious hospitals and institutions of higher education that object to contraceptive coverage. Under the accommodation, these organizations will not have to contract and pay for contraceptive coverage to which they object on religious grounds, but insurers must separately provide women enrolled in these health plans with contraceptive coverage no cost.

The approach taken in the final rules is similar to, but simpler than, that taken in the proposed rules, and responds to comments made by many stakeholders, according to an announcement by the Department of Health and Human Services.

With respect to an insured health plan, the nonprofit religious organization provides notice to its insurer that it objects to contraception coverage. The insurer then notifies enrollees in the health plan that it is providing them separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan.

Similarly, with respect to self-insured health plans, the nonprofit religious organization provides notice to its third-party administrator that it objects to contraception coverage. The third-party administrator then notifies enrollees in the health plans that it is providing or arranging separate no-cost payments for contraceptive services for them for as long as they remain enrolled in the health plan.

Nonprofit religious organizations must provide to their insurer or third-party administratorEBSA Form 700 (downloadable in MS-Word from the DOL's website), certifying that the organization qualifies for an accommodation.

Religiously affiliated nonprofits have until Jan. 1, 2014, to provide coverage of contraceptives, extended by the final rule from the previous deadline of Aug. 1.

The U.S. Conference of Catholic Bishops, a leading critic of the contraceptive mandate, had charged that the accommodation for religious nonprofits, when proposed, was insufficient.

In light of the final rule, on July 2 a group of national religious leaders, including Archbishop William E. Lori of Baltimore and Russell D. Moore of the Ethical and Religious Liberty Commission of the Southern Baptist Convention, releasedan open lettercalling on HHS to "at a minimum, expand conscience protections under the mandate to cover any organization or individual that has religious or moral objections to covering, providing or enabling access to the mandated drugs and services."

The letter also asks Congress to take measures "to prevent future breaches of religious freedom."

Stephen Miller, CEBS, is an online editor/manager for SHRM.​

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