The Affordable Care Act requires non-grandfathered health plans to provide coverage for preventive care services without cost-sharing. Some preventive care services relate specifically to women's health issues. To review our article on women's preventive health services, click here.
One of the women's preventive health care services that must be covered without cost-sharing is prescribed, Food and Drug Administration-approved contraceptives for women. Religious employers took exception to the requirement to cover contraceptives for women. As a result, the government issued regulations providing that group health plans established or maintained by certain religious employers would be excepted from the requirement to cover contraceptive services. The regulations specified that a religious employer eligible to take advantage of the exemption is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization described in certain sections of the Internal Revenue Code (referring to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order).
Earlier this year, the Department of Health and Human Services reaffirmed the exemption and provided that a temporary enforcement safe harbor would be provided to non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans). Just a few weeks ago, the government provided new guidance on the temporary enforcement safe harbor. This guidance provides that the temporary enforcement safe harbor is available to non-exempted, non-grandfathered group health plans established or maintained by non-profit organizations whose plans have consistently not covered all or the same subset of contraceptive services for religious reasons at any point from February 10, 2012 onward, consistent with any applicable State law (and any group health insurance coverage). The safe harbor provided that the government would not enforce the requirement to cover contraceptives until plan years beginning on or after August 1, 2013 for a nonprofit organization that
1. Is organized and operates as a non-profit entity;
2. From February 10, 2012 onward has consistently not provided all or the same part of the contraceptive coverage because of its religious objections;
3. Provides participants a notice explaining that some or all contraceptive coverage will not be provided; and
4. Self-certifies that it meets these criteria.
The guidance explains that
- The safe harbor is also available to nonprofit organizations with religious objections to some but not all contraceptive coverage;
- Group health plans will not be ineligible for the safe harbor merely because an attempt made before February 10, 2012 to exclude or limit contraceptive coverage proved unsuccessful; and
- The safe harbor may be invoked without prejudice by nonprofit organizations that are uncertain whether they qualify for the religious employer exemption, which means that an otherwise-eligible employer will not be precluded from taking advantage of the safe harbor in the future.
If a non-profit organization who made an unsuccessful attempt to limit contraceptive coverage wants to take advantage of the exemption, it must certify that it (or its plan or insurer) took some action before February 10, 2012 to try to exclude some or all contraceptive services from coverage because of the organization’s religious beliefs, but such services were covered under the plan despite the organization's action. These groups must also issue a notice to plan participants.
This guidance provides a sample notice to participants and required certification. This notice is welcome confirmation that certain non-profit organizations with certain religious beliefs will not be required to cover contraceptives for women at least until plan years beginning on or after August 1, 2013.
