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Reissued HHS Bulletin Clarifies Eligibility for Contraceptives Coverage Safe Harbor
Practical Law Legal Update 1-520-9541 (Approx. 4 pages)
Reissued HHS Bulletin Clarifies Eligibility for Contraceptives Coverage Safe Harbor
by PLC Employee Benefits & Executive Compensation
| Published on 17 Aug 2012 • USA (National/Federal) |
The Department of Health and Human Services (HHS) reissued the bulletin that provides a temporary enforcement safe harbor for group health plans sponsored by certain religious-affiliated employers. Among other things, the reissued bulletin clarifies the eligibility of certain nonprofit organizations, including group health plans sponsored by these organizations, for the safe harbor.
On August 15, 2012, HHS reissued a bulletin addressing the temporary enforcement safe harbor for coverage of contraceptive services for women under the Affordable Care Act's (ACA's) preventive services rules. The bulletin:
- Was originally issued on February 10, 2012 (see Legal Update, HHS Guidance on Contraceptives Establishes Temporary Safe Harbor for Religious Organizations).
- Clarifies which group health plans are eligible for the safe harbor.
As part of its preventive services rules, the ACA requires non-grandfathered group health plans and insurers to provide coverage for FDA-approved contraceptives without cost-sharing. An exemption exists for group health plans established or maintained by religious employers. In addition to the religious employer exemption, the February 2012 temporary enforcement safe harbor:
- Is available to a larger set of religiously-affiliated organizations.
- Provides group health plans sponsored by these religious-affiliated employers an additional year to comply with the contraceptives coverage requirement.
The reissued bulletin clarifies that:
- Group health plans that tried unsuccessfully to exclude or limit contraceptive coverage as of February 10, 2012, are not for that reason barred from eligibility for the safe harbor.
- The safe harbor is available to non-profit organizations with religious objections to some, but not all, contraceptive coverage.
- The safe harbor can be "invoked without prejudice" by non-profit organizations that are uncertain whether they qualify for the religious employer exemption.
Reissued Safe Harbor Adds Exception for Unsuccessful Attempts to Exclude Contraceptives Coverage
The reissued bulletin provides additional background regarding one of the four requirements for the safe harbor. Under this requirement, as restated in the August 2012 bulletin, from any point on or after February 10, 2012, an organization's group health plan must consistently not have provided all (or the same subset of) the contraceptive coverage otherwise required, because of the organization's religious beliefs. The August 2012 bulletin provides an exception from this requirement under which a group health plan will not be considered to have provided all or the same subset of contraceptive coverage otherwise required if:
- It took some action to try to exclude or limit the contraceptive coverage.
- That action was unsuccessful as of February 10, 2012.
As a result, the coverage would not disqualify the employer, group health plan or insurer from eligibility for the safe harbor. However, the organization must certify that:
- It (or its plan or insurer) took some action before February 10, 2012, to try to exclude from coverage under the plan some or all contraceptive services due to the organization's religious beliefs.
- Contraceptive services were subsequently covered under the plan despite such action.
Interaction of Religious Employer Exemption and Safe Harbor
An employer that:
- Potentially qualifies for the religious exemption may, if eligible, opt to invoke the temporary enforcement safe harbor.
- Chooses to use the safe harbor is not prohibited from later invoking the religious employer exemption, if eligible.
Practical Implications
The reissued temporary enforcement safe harbor may be helpful to organizations that are uncertain about whether they can take advantage of the temporary enforcement safe harbor. In addition, HHS is currently developing guidance that would provide alternative methods of providing contraceptive coverage without cost sharing to accommodate non-exempt, nonprofit religious objections with religious organizations to this coverage (see Legal Update, Contraceptive Coverage Proposals Would Expand Role of Insurers and TPAs). The reissued safe harbor does not indicate when HHS' additional accommodations can be expected.
For more information on required coverage of preventive services, see Practice Note, Coverage of Preventive Health Services under the ACA.