TD 9840, 10/15/2018; TD 9841, 10/15/2018; Reg. § 54.9815-2713; Labor Reg. 2590.715-2713A; 45 CFR 147.131 ;45 CFR 147.132; 45 CFR 147.133
IRS, the Department of Health and Human Services (HHS), and the Department of Labor (DOL; collectively, the agencies have finalized the final interim regs on the coverage of certain preventive services under the Affordable Care Act (ACA, or Obamacare). Specifically, the regs adopt the final interim rules with some changes to expand the exemptions for certain entities and individuals with objections, based on religious beliefs, to the ACA’s contraceptive mandate. The regs also include the exemption to protect certain entities and individuals with moral objections to the ACA’s contraceptive mandate.
Background. Under the ACA, non-grandfathered, non-excepted group health plans are required to provide certain contraceptive coverage without cost-sharing. Qualifying religious employers are exempt from this rule, and an accommodation process was provided for certain nonprofit employers, and closely held for-profit employers, with religious objections to this rule. Among other things, regs on the accommodation process required an eligible organization to self-certify its objection to its insurer, third-party administrator, or HHS (the “notice requirement”; see “Final regs clarify preventive services under ACA & exemption from contraceptive mandate“).
There were legal challenges to the notice requirement on the grounds that it impermissibly burdened the impacted entities’ exercise of religion by effectively compelling them to facilitate the provision of contraceptive coverage (see “Supreme Court vacates & remands decisions on Affordable Care Act’s contraceptive coverage“). The Departments issued FAQs in response to these concerns explaining that no feasible approach had been identified to modify the accommodation process in a way that would resolve the competing concerns.
Later, the Departments issued two sets of temporary regs (and identical proposed regs) related to the contraceptive mandate (see “Regs expand exemptions from Affordable Care Act’s contraceptive mandate“).
Final interim regs adopted. Now, with two sets of regs, the Departments have finalized, with changes based on public comments, the interim final regs concerning religious and moral exemptions and accommodations regarding coverage of certain preventive services.
The regs expand exemptions to protect religious and moral beliefs for certain entities and individuals whose health plans are subject to ACA’s contraceptive mandate. These regs do not alter HHS’s discretion to maintain the guidelines requiring contraceptive coverage where no recognized objection exists.
The regs continue to permit an optional “accommodation” process for certain exempt entities that wish to use the accommodation process voluntarily.
Finally, the regs do not alter the many other federal programs that provide free or subsidized contraceptives for women at risk of unintended pregnancy.
Effective date. These regs are effective on Dec. 14, 2018.
References: For exemption for religious employers from providing contraceptive care under the preventive health care requirements, see FTC 2d/FIN ¶ H-1325.60N; United States Tax Reporter ¶ 98,154.13.
