EBIA Weekly Newsletter

Agencies Seek Alternative Accommodation Process for Contraceptive Coverage Mandate

   July 28, 2016

Request for Information: Coverage for Contraceptive Services, 26 CFR Part 54; 26 CFR Part 2590; 45 CFR Part 147, 81 Fed. Reg. 47741 (July 22, 2016)

Available at https://www.gpo.gov/fdsys/pkg/FR-2016-07-22/pdf/2016-17242.pdf

The DOL, IRS, and HHS have issued a request for information on alternative ways of accommodating eligible organizations that object to providing mandated contraceptive coverage on religious grounds. Health care reform generally requires, as part of women’s preventive health services, that group health plans provide coverage for FDA-approved contraceptives without cost-sharing. Qualifying religious employers, however, are exempt, and an accommodation process is provided for certain nonprofit employers and closely held for-profit employers with religious objections (see our Checkpoint article). Among other things, organizations seeking accommodation must self-certify that they meet the required criteria (see our Checkpoint article).

The information is being requested in response to the U.S. Supreme Court’s recent ruling in Zubik v. Burwell, in which the Court returned a number of cases challenging the accommodation process to the appellate courts (see our Checkpoint article). In Zubik, the religious organizations had stated that their religious exercise would not be infringed under the Religious Freedom Restoration Act (RFRA) if they could simply purchase health coverage that did not include contraceptives, even if their employees received contraceptive coverage from the same insurance company, so long as the contraceptive coverage was truly independent (including a separate enrollment process). The government had indicated that it would be amenable to modifying the accommodation to allow for this process. In this request, the agencies state their continued belief that the existing accommodation process is consistent with the RFRA; however, they are seeking input from other stakeholders (such as insurers, TPAs, other employers, and health plan participants) who are not parties to the Zubik litigation, to determine whether the alternative process proposed in Zubik would resolve their objections. The agencies have also requested comments on viable alternatives to the existing accommodation process for self-insured health plans. Comments are due by September 20, 2016.

EBIA Comment: The agencies continue to grapple with a suitable accommodation to the contraceptive coverage mandate for qualifying employers with religious objections. In the meantime, a court has held that the contraceptive coverage mandate interferes with an individual’s rights under the RFRA (see Wieland v. HHS, 2016 WL 3924118 (E.D. Mo. 2016)). There is currently no regulatory exemption or accommodation for individuals with religious objections to the mandate. 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 XIII.C (“Coverage of Preventive Health Services”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Preventive Health Services”).

Contributing Editors: EBIA Staff.