Agency FAQs (Part 48) Signal Changes to Contraceptive Coverage Exemptions

The DOL, HHS, and IRS have issued a single FAQ announcing future regulatory guidance on the Affordable Care Act (ACA) contraceptive coverage mandate. As background, the ACA generally requires non-grandfathered group health plans to provide coverage without cost-sharing for specified preventive health services—including certain contraceptive services— when delivered by in-network providers. Regulations issued in 2018 expanded an existing religious exemption from this mandate to include exemptions for any individual or nongovernmental entity that objects to providing coverage of some or all contraceptives based on sincerely held religious beliefs or moral convictions (see our Checkpoint article). In 2020, the U.S. Supreme Court upheld the expanded exemptions, rejecting arguments that the 2018 regulations were substantively and procedurally invalid (see our Checkpoint article). This FAQ advises that the agencies are considering changes to the regulations “in light of recent litigation” and intend to initiate rulemaking to amend the regulations within the next six months.

EBIA Comment: It appears that the U.S. Supreme Court has not put to rest the wrangling over these regulations, which were initially issued in 2013 (see our Checkpoint article). Impacted employers and advisors should look for the agencies’ proposed changes in early 2022. For more information, see EBIA’s Health Care Reform manual at Section XII.C (“Coverage of Preventive Health Services”). See also EBIA’s Group Health Plan Mandates manual at Section XIV.E (“Contraceptive Coverage: Exemptions and Accommodations Based on Religious Beliefs and Moral Convictions”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Preventive Health Services”).

Contributing Editors: EBIA Staff.