HHS Clarifies Temporary Safe Harbor from Contraceptive Coverage

Nonprofits with religious objections can obtain a one-year delay from the contraceptive mandate

By Susan Bookman, Highroads Sep 4, 2012

The Patient Protection and Affordable Care Act (PPACA) requires nongrandfathered group health plans and health insurance issuers to provide coverage for recommended women’s preventive health services without cost sharing.

On Jan. 20, 2012, Health and Human Services (HHS) Secretary Kathleen Sebelius indicated that a temporary, one-year safe harbor would be provided to nonexempt, nongrandfathered group health plans established and maintained by nonprofit organizations with religious objections to contraceptive coverage.

On Feb. 10, 2012, HHS's Centers for Medicare and Medicaid Services (CMS) issued a bulletin stating that a one-year safe harbor from enforcement of the contraceptive coverage mandate (until the first plan year beginning on or after Aug. 1, 2013) would be available for nonprofit organizations that have not historically covered contraceptives due to religious objections.

A revised CMS bulletin was issued on Aug. 15, 2012, with clarifications to the previous bulletin. The reissued bulletin clarifies three points:

The temporary enforcement safe harbor is available to nonprofit organizations with religious objections to some, but not all, contraceptive coverage.

Group health plans that took some action to try to exclude or limit contraceptive coverage that was not successful as of Feb. 10, 2012, are not for that reason precluded from eligibility for the temporary safe harbor.

The temporary safe harbor may be invoked without prejudice by nonprofit organizations that are uncertain whether they qualify for the religious employer exemption. Organizations that have already completed the certification or issued the notice from the Feb. 10, 2012, bulletin are not required by the revised bulletin to recertify or reissue the notice.

Safe Harbor Conditions

The reissued bulletin also states that, to be exempt from enforcement action regarding contraceptive coverage under the temporary safe harbor, employers, group health plans and group health insurance issuers must meet all of the following criteria:

1. The organization is organized and operates as a nonprofit entity.

2.From Feb. 10, 2012, onward, the group health plan established or maintained by the organization has consistently not provided all or the same subset of the contraceptive coverage otherwise required at any point, consistent with any applicable state law, because of the religious beliefs of the organization.

3. The group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) must provide to participants a notice attached to the bulletin that states some or all contraceptive coverage will not be provided under the plan for the first plan year beginning on or after Aug. 1, 2012. (For example, for a calendar-year plan with an open enrollment period beginning Nov. 1, the notice must be in any application materials provided to participants on or after Nov. 1, 2012.)

The organization must self-certify that it satisfies all three of the above criteria, and must document its self-certification in accordance with the procedures detailed in the bulletin.

Susan Bookman is a consultant at Highroads, an employer health care compliance and benefits communications management firm.

© 2012 Highroads. All rights reserved. Republished with permission.​

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