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Final Regs on Mandated Health Plan Coverage of Contraception Amended to Provide Alternative Notice Process for Objecting Religious Organizations

IRS, DOL, and the Department of Health and Human Services (HHS) (collectively, the “Departments”) have issued interim final regs on the exemption for religious organizations that don’t want their health plans to provide contraception benefits, as otherwise required by the Affordable Care Act (ACA). The interim final regs include an alternative process that an eligible organization may use to provide notice of its religious objections to providing contraceptive coverage. The Departments are, simultaneously, seeking comments on these changes. (Reg. § 54.9815-2713A; Reg. § 54.9815-2713AT; Labor Reg. 2510.3-16; Labor Reg. 2590.715-2713A; Preamble to TD9690, 8/27/2014; Prop Reg § 54.9815-2713A )

Background.

The Departments issued the interim final regs at the same time as they issued proposed regs that would extend the availability of an accommodation with respect to coverage of preventive health services, by redefining the term “eligible organizations.” The proposed regs, as well as the background and the Supreme Court decisions that led to both sets of regs, are discussed at ¶ 42.

Specifically with respect to the notice requirements, existing final regs provided an accommodation for group health plans established or maintained or arranged by certain nonprofit religious organizations with religious objections to contraceptive coverage (referred to as “eligible organizations”) (see Pension and Benefits Week ¶  1  7/8/2013). For these purposes, DOL and HHS issued a self-certification form, EBSA Form 700, to be executed by an organization seeking to be treated as an eligible organization, and to be sent to the plan’s third-party administrator (TPA) or health insurance issuer. However, in Wheaton College v. Burwell , the Supreme Court’s order stated that Wheaton College need not use EBSA Form 700 or send a copy of the executed form to its issuers or TPAs to meet the condition for the Court’s injunctive relief.

Revised accommodation notice.

The interim final regs respond to the Wheaton College decision by providing an alternative notice procedure, which preserves participants’ and beneficiaries’ (and enrollees’ and dependents’) access to coverage for the full range of Food and Drug Administration (FDA)-approved contraceptives, as prescribed by a health care provider, without imposing any cost-sharing requirements (like a copayment, coinsurance, or a deductible). While the interim final regs continue to allow eligible organizations to use EBSA Form 700, they provide that an eligible organization may notify HHS in writing of its religious objection to coverage of all or a subset of contraceptive services.

Using the alternative procedure, an eligible organization’s notice must include:

1. the name of the eligible organization;
2. the basis on which it qualifies for an accommodation;
3. its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable);
4. the plan name and type; and
5. the name and contact information for any of the plan’s TPAs and health insurance issuers.

After a notice is submitted to HHS, DOL (working with HHS) will send a separate notification to each of the plan’s TPAs informing the TPAs that HHS has received such a notice, and describing the TPA’s obligations to provide the contraceptive coverage. (Reg. § 54.9815-2713AT(b)(1)(ii)(B); Labor Reg. 2590.715-2713A(b)(1)(ii)(B))

A model notice, which does not have to be used, is available at http://www.cms.gov/cciio/resources/Regulations-and-Guidance/index.html#Prevention . The notice to HHS, and any later updates, must be sent electronically to , or by regular mail to: Centers for Medicare & Medicaid Services, Center for Consumer Information and Insurance Oversight, 200 Independence Avenue SW, Washington, D.C., 20201, Room 739H. (Preamble to TD9690, )

The interim final regs are also amended to clarify that a TPA’s obligations with respect to contraceptive coverage are triggered whether the TPA receives self-certification from the eligible organization itself, or receives the alternative notice from DOL. (Reg. § 54.9815-2713AT(b); Labor Reg. 2590.715-2713A(b))

The interim final regs are effective August 27, 2014. (Preamble to TD9690, )

Comments.

Written comments on parallel proposed regs issued by IRS (Prop Reg § 54.9815-2713A) may be submitted by November 25, 2014, to CC:PA:LPD:PR (REG-129507-14), room 5205, IRS, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered to: CC:PA:LPD:PR (REG-129507-14), Courier’s Desk, IRS, 1111 Constitution Avenue, NW, Washington DC 20224. Alternatively, comments may be submitted electronically via the Federal eRulemaking Portal ( http://www.regulations.gov ) referencing IRS REG-129507-14.

Written comments on the interim final regs may also be submitted by October 27, 2014, to DOL (which will share them with HHS) through the Federal eRulemaking Portal ( http://www.regulations.gov ), or by mailing or hand delivering them to: Office of Health Plan Standards and Compliance Assistance, EBSA, Room N-5653, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, DC 20210, Attention: Preventive Services.

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