The scope of closely held, for-profit corporations, for accommodation purposes, includes a "substantially similar" standard intended to offer greater flexibility over the Code's 5-owner/50% requirement. Under the "substantially similar" standard, for example, an entity ownership structure in which 49% of the value of the outstanding ownership interests are owned directly by six individuals also could qualify as a closely held, for-profit entity.

In the preamble to the 2015 regulations, the Departments indicated that the definition of closely held, for-profit entity should include any for-profit entity that is controlled (directly or indirectly) by a nonprofit eligible organization. The nonprofit entity in this case represents one shareholder that owns more than 50% of the ownership interests in the for-profit entity. For purposes of the ownership concentration test applicable to for-profit entities:

A closely held, for-profit entity's objection to covering contraceptives (based on its owners' sincerely held religious beliefs) must be consistent with the entity's rules of governance. State corporate law determines how a corporation establishes its governing structure. Specifically, the organization's board of directors, board of trustees, or owners (that is, the organization's highest governing body) must adopt a resolution establishing that the organization objects to covering some or all of the contraceptive services on account of its owners' sincerely held religious beliefs. As an alternative to adopting resolutions, the organization may take other similar action consistent with its applicable rules of governance and state law.

The Departments declined to adopt rules requiring that:

The 2015 regulations do not require that a resolution establishing an entity's religious objections be provided as a matter of course to the government or any other party. Regarding documentation of this decision, however, the Departments noted that ERISA's recordkeeping requirements apply:

As with the August 2014 interim final regulations, the 2015 regulations allow eligible organizations to seek an accommodation regarding the contraceptives mandate by submitting EBSA Form 700 or using an alternative notification process. Under the alternative process, an eligible organization that objects to using Form 700 may notify HHS directly, in writing, that it is an eligible organization with religious objections to covering contraceptives.

Addressing ongoing questions about the scope of which preventive health items and services must be provided under the ACA without cost-sharing, the Departments noted that several sets of FAQ guidance have discussed these issues (see, for example Legal Updates, FAQs Address Cost-Sharing Limits and Coverage of Preventive Services under the ACA, FAQs Address Updated COBRA Notices, Cost-sharing Limits, SBCs and More and ACA FAQs Address Coverage of Contraceptive Methods). To the extent there are additional questions regarding the scope of required preventive services, those issue may be addressed in future FAQ guidance.

Also, the 2015 regulations continue to apply a "primary purpose" rule adopted in the context of preventive services provided during an office visit (see Practice Note, Preventive Health Services under the ACA, Other Than Contraceptives: Cost-Sharing and Office Visits).

The 2015 regulations adopt a rule (previously issued in FAQ guidance) regarding out-of-network providers (see Practice Note, Preventive Health Services under the ACA, Other Than Contraceptives: Out-of-Network Services). Under this rule, if a plan or insurer does not have a provider in its network that can furnish a particular recommended preventive service, the plan or issuer must cover the item or service when performed by an out-of-network provider (without cost-sharing).

Also, the 2015 regulations incorporate (or simply reference, by way of reminder in the preamble) prior FAQ guidance addressing reasonable medical management and value-based insurance designs (VBID) (see Practice Note, Preventive Health Services under the ACA, Other Than Contraceptives: Reasonable Medical Management Techniques).

In general, plans and insurers must provide coverage for new recommended preventive services for plan years beginning on or after the date that is one year after the date the recommendation or guideline is issued. The 2015 regulations include a rule intended to avoid coverage disruptions during a plan year. Under this rule, a plan or insurer that must provide coverage for a preventive service on the first day of a plan year under a particular recommendation or guideline generally must provide that coverage through the last day of the plan year, even if the recommendation or guideline changes or is eliminated during the plan year. Limited exceptions to this rule exist, for example, if a preventive item or service with an "‘A" or "B" recommendation as of the first day of a plan year is downgraded during the year to a "D" rating.