Overview of HHS freedom of conscience/religion controversy (2011-2013)
Appendix "C"
45 CFR Part 147 (2011): Interim Final Rules & HHS Commentary
Group Health Plans and Health Insurance Issuers Relating to
Coverage of Preventive Services Under the Patient Protection and
Affordable Care Act
Federal Register / Vol. 76, No. 149 / Wednesday,
August 3, 2011 / Rules and Regulations,
Pages 46621-46626
Note:
Sections of the regulation pertaining to freedom of
conscience/religion are highlighted in yellow.
[Administrator]
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 54 [TD 9541] RIN 1545-BJ60
DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2590 RIN 1210-AB44
DEPARTMENT OF HEALTH AND HUMAN SERVICES
[CMS-9992-IFC2]
45 CFR Part 147 RIN 0938-AQ07
AGENCIES:
- Internal Revenue Service, Department of the
Treasury;
- Employee Benefits Security Administration,
Department of Labor;
- Centers for Medicare & Medicaid Services,
Department of Health and Human Services.
ACTION:
Interim final rules with request for comments.
SUMMARY:
This document contains amendments to the interim
final regulations implementing the rules for group
health plans and health insurance coverage in the
group and individual markets under provisions of the
Patient Protection and Affordable Care Act regarding
preventive health services.
DATES:
- Effective date. These interim final
regulations are effective on August 1, 2011.
- Comment date. Comments are due on or before
September 30, 2011.
- Applicability dates. These interim final
regulations generally apply to group health
plans and group health insurance issuers on
August 1, 2011.
ADDRESSES:
Written comments may be submitted to any of the
addresses specified below. Any comment that is
submitted to any Department will be shared with the
other Departments. Please do not submit duplicates.
All comments will be made available to the
public.
WARNING:
Do not include any personally identifiable
information (such as name, address, or other contact
information) or confidential business information
that you do not want publicly disclosed. All
comments are posted on the Internet exactly as
received, and can be retrieved by most Internet
search engines. No deletions, modifications, or
redactions will be made to the comments received, as
they are public records. Comments may be submitted
anonymously.
Department of Labor.
Comments to the Department of Labor, identified
by RIN 1210-AB44, by one of the following methods:
-
Federal eRulemaking Portal:
https://www.regulations.gov.
- Follow the instructions for submitting
comments.
- E-mail:
E-OHPSCA2713.EBSA@dol.gov.
- Mail or Hand Delivery: Office of Health Plan
Standards and Compliance Assistance, Employee
Benefits Security Administration, Room N-5653,
U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210, Attention:
RIN 1210-AB44.
Comments received by the Department of Labor will
be posted without change to
https://www.regulations.gov and
https://www.dol.gov/ebsa, and available for
public inspection at the Public Disclosure Room,
N-1513, Employee Benefits Security Administration,
200 Constitution Avenue, NW., Washington, DC 20210.
Department of Health and Human
Services.
In commenting, please refer to file code
CMS-9992-IFC2. Because of staff and resource
limitations, we cannot accept comments by facsimile
(FAX) transmission. You may submit comments in one
of four ways (please choose only one of the ways
listed):
1. Electronically. You may
submit electronic comments on this regulation to
https://www.regulations.gov. Follow the "Submit
a comment'' instructions.
2. By regular mail. You may
mail written comments to the following address ONLY:
Centers for Medicare & Medicaid Services, Department
of Health and Human Services, Attention:
CMS-9992-IFC2, P.O. Box 8010, Baltimore, MD
21244-8010.
Please allow sufficient time for mailed comments
to be received before the close of the comment
period.
3. By express or overnight
mail. You may send written comments to the following
address ONLY: Centers for Medicare & Medicaid
Services, Department of Health and Human Services,
Attention: CMS-9992-IFC2, Mail Stop C4-26-05, 7500
Security Boulevard, Baltimore, MD 21244-1850.
4. By hand or courier.
Alternatively, you may deliver (by hand or courier)
your written comments ONLY to the [Page 46622]
following addresses prior to the close of the
comment period: Centers for Medicare & Medicaid
Services, Department of Health and Human Services,
Room 445-G, Hubert H. Humphrey Building, 200
Independence Avenue, SW., Washington, DC 20201
(Because access to the interior of the Hubert H.
Humphrey Building is not readily available to
persons without Federal government identification,
commenters are encouraged to leave their comments in
the CMS drop slots located in the main lobby of the
building. A stamp- in clock is available for persons
wishing to retain a proof of filing by stamping in
and retaining an extra copy of the comments being
filed.)
b. For delivery in Baltimore,
MD--Centers for Medicare & Medicaid Services,
Department of Health and Human Services, 7500
Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the
Baltimore address, call telephone number (410)
786-4492 in advance to schedule your arrival with
one of our staff members. Comments mailed to the
addresses indicated as appropriate for hand or
courier delivery may be delayed and received after
the comment period.
Inspection of Public Comments:
All comments received before the close of the
comment period are available for viewing by the
public, including any personally identifiable or
confidential business information that is included
in a comment. We post all comments received before
the close of the comment period on the following Web
site as soon as possible after they have been
received: https://www.regulations.gov. Follow the search
instructions on that Web site to view public
comments.
Comments received timely will also be available
for public inspection as they are received,
generally beginning approximately three weeks after
publication of a document, at the headquarters of
the Centers for Medicare & Medicaid Services, 7500
Security Boulevard, Baltimore, Maryland 21244,
Monday through Friday of each week from 8:30 a.m. to
4 p.m. EST. To schedule an appointment to view
public comments, phone 1-800-743-3951.
Internal Revenue Service.
Comments to the IRS, identified by REG-
120391-10, by one of the following methods:
- Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
- Mail: CC:PA:LPD:PR (REG-120391-10), room
5205, Internal Revenue Service, P.O. Box 7604,
Ben Franklin Station, Washington, DC 20044.
- Hand or courier delivery: Monday through
Friday between the hours of 8 a.m. and 4 p.m.
to: CC:PA:LPD:PR (REG-120391-10), Courier's
Desk, Internal Revenue Service, 1111
Constitution Avenue, NW., Washington DC 20224.
All submissions to the IRS will be open to public
inspection and copying in room 1621, 1111
Constitution Avenue, NW., Washington, DC from 9 a.m.
to 4 p.m.
FOR FURTHER INFORMATION CONTACT:
Amy Turner or Beth Baum, Employee Benefits
Security Administration, Department of Labor, at
(202) 693- 8335;
Karen Levin, Internal Revenue Service, Department
of the Treasury, at (202) 622-6080;
Robert Imes, Centers for Medicare & Medicaid
Services (CMS), Department of Health and Human
Services, at (410) 786-1565.
Customer Service Information:
Individuals interested in obtaining information
from the Department of Labor concerning
employment-based health coverage laws may call the
EBSA Toll-Free Hotline at 1-866-444- EBSA (3272) or
visit the Department of Labor's Web site (https://www.dol.gov/ebsa).
In addition, information from HHS on private health
insurance for consumers can be found on the Centers
for Medicare & Medicaid Services (CMS) Web site (https://cciio.cms.gov)
and information on health reform can be found at
https://www.HealthCare.gov.
Supplementary Information:
The Patient Protection and Affordable Care
Act, Public Law 111-148, was enacted on March
23, 2010; the Health Care and Education
Reconciliation Act (the Reconciliation Act),
Public Law 111-152, was enacted on March 30, 2010
(collectively known as the "Affordable Care Act'').
The Affordable Care Act reorganizes,
amends, and adds to the provisions of part A of
title XXVII of the Public Health Service Act
(PHS Act) relating to group health plans and health
insurance issuers in the group and individual
markets. The term "group health plan'' includes
both insured and self-insured group health plans.1
The Affordable Care Act adds section
715(a)(1) to the Employee Retirement Income
Security Act (ERISA) and section 9815(a)(1) to
the Internal Revenue Code (the Code)
to incorporate the provisions of part A of title
XXVII of the PHS Act into ERISA and the Code,
and make them applicable to group health plans, and
health insurance issuers providing health insurance
coverage in connection with group health plans. The
PHS Act sections incorporated by this reference are
sections 2701 through 2728. PHS Act sections 2701
through 2719A are substantially new, though they
incorporate some provisions of prior law. PHS Act
sections 2722 through 2728 are sections of prior law
renumbered, with some, mostly minor, changes.
Subtitles A and C of title I of the Affordable Care Act amend the requirements of
title XXVII of the PHS Act (changes to which are
incorporated into ERISA section 715). The preemption
provisions of ERISA section 731 and PHS Act section
27242(implemented
in 29 CFR 2590.731(a) and 45 CFR 146.143(a)) apply
so that the requirements of part 7 of ERISA and
title XXVII of the PHS Act, as amended by the Affordable Care Act, are not to be "construed
to supersede any provision of State law which
establishes, implements, or continues in effect any
standard or requirement solely relating to health
insurance issuers in connection with group or
individual health insurance coverage except to the
extent that such standard or requirement prevents
the application of a requirement'' of the Affordable Care Act. Accordingly, State laws
that impose requirements on health insurance issuers
that are stricter than the requirements imposed by
the Affordable Care Act are not superseded
by the Affordable Care Act.
Section 2713 of the PHS Act, as added by the Affordable Care Act and incorporated under
section 715(a)(1) of ERISA and section 9815(a)(1) of
the Code, specifies that a group health
plan and a health insurance issuer offering group or
individual health insurance coverage provide
benefits for and prohibit the imposition of
cost-sharing with respect to:
Evidence-based items or
services that have in effect a rating of A or B in
the current recommendations of the United States
Preventive Services Task Force (Task Force) with
respect to the individual involved.3
[Page 46623]
Immunizations for routine use in children,
adolescents, and adults that have in effect a
recommendation from the Advisory Committee on
Immunization Practices of the Centers for Disease
Control and Prevention (Advisory Committee) with
respect to the individual involved. A recommendation
of the Advisory Committee is considered to be "in
effect'' after it has been adopted by the Director
of the Centers for Disease Control and Prevention. A
recommendation is considered to be for routine use
if it appears on the Immunization Schedules of the
Centers for Disease Control and Prevention.
With respect to infants, children, and
adolescents, evidence-informed preventive care and
screenings provided for in the comprehensive
guidelines supported by the Health Resources and
Services Administration (HRSA).
With respect to women, preventive care and
screening provided for in comprehensive guidelines
supported by HRSA (not otherwise addressed by the
recommendations of the Task Force), which will be
commonly known as HRSA's Women's Preventive
Services: Required Health Plan Coverage Guidelines.
The requirements to cover recommended preventive
services without any cost-sharing do not apply to
grandfathered health plans.4The
Departments previously issued interim final
regulations implementing PHS Act section 2713; these
interim final rules were published in the Federal
Register on July 19, 2010 (75 FR 41726). For the
reasons explained below, the Departments are now
issuing an amendment to these interim final rules.
II. Overview of the
Amendment to the Interim Final Regulations
The interim final regulations provided that a
group health plan or health insurance issuer must
cover certain items and services, without
cost-sharing, as recommended by the U.S. Preventive
Services Task Force, the Advisory Committee on
Immunization Practices of the Centers for Disease
Control and Prevention, and the Health Resources and
Services Administration. Notably, to the extent not
described in the U.S. Preventive Services Task Force
recommendations, HRSA was charged with developing
comprehensive guidelines for preventive care and
screenings with respect to women (i.e., the Women's
Preventive Services: Required Health Plan Coverage
Guidelines or "HRSA Guidelines''). The interim
final regulations also require that changes in the
required items and services be implemented no later
than plan years (in the individual market, policy
years) beginning on or after the date that is one
year from when the new recommendation or guideline
is issued.
In response to the request for comments on the
interim final regulations, the Departments received
considerable feedback regarding which preventive
services for women should be considered for coverage
under PHS Act section 2713(a)(4). Most commenters,
including some religious organizations, recommended
that HRSA Guidelines include contraceptive services
for all women and that this requirement be binding
on all group health plans and health insurance
issuers with no religious exemption.
However, several
commenters asserted that requiring group health
plans sponsored by religious employers to cover
contraceptive services that their faith deems
contrary to its religious tenets would impinge upon
their religious freedom. One commenter noted that
some religious employers do not currently cover such
benefits under their group health plan due to their
religious beliefs.
The Departments note that PHS Act section
2713(a)(4) gives HRSA the authority to develop
comprehensive guidelines for additional preventive
care and screenings for women "for purposes of this
paragraph.'' In other words, the statute
contemplated HRSA Guidelines that would be developed
with the knowledge that certain group health plans
and health insurance issuers would be required to
cover the services recommended without cost-sharing,
unlike the other guidelines referenced in section
2713(a), which pre-dated the Affordable Care Act
and were originally issued for purposes of
identifying the non-binding recommended care that
providers should provide to patients. These HRSA
Guidelines exist solely to bind non-grandfathered
group health plans and health insurance issuers with
respect to the extent of their coverage of certain
preventive services for women.
In the Departments' view,
it is appropriate that HRSA, in issuing these
Guidelines, takes into account the effect on the
religious beliefs of certain religious employers if
coverage of contraceptive services were required in
the group health plans in which employees in certain
religious positions participate. Specifically, the
Departments seek to provide for a religious
accommodation that respects the unique relationship
between a house of worship and its employees in
ministerial positions. Such an accommodation would
be consistent with the policies of States that
require contraceptive services coverage, the
majority of which simultaneously provide for a
religious accommodation.
In light of the above, the Departments are
amending the interim final rules to provide HRSA
additional discretion to exempt certain religious
employers from the Guidelines where contraceptive
services are concerned. The amendment to the interim
final rules provides HRSA with the discretion to
establish this exemption. Consistent with most States that have such
exemptions, as described below, the amended
regulations specify that, for purposes of this
policy, a religious employer 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 under section 6033(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Code.
Section 6033(a)(3)(A)(i) and (iii) refer to
churches, their integrated auxiliaries, and
conventions or associations of churches, as well as
to the exclusively religious activities of any
religious order. The
definition of religious employer, as set forth in
the amended regulations, is based on existing
definitions used by most States that exempt certain
religious employers from having to comply with State
law requirements to cover contraceptive services.
We will be accepting comments on this definition as
well as alternative definitions, such as those that
have been developed under Title 26 of the United
States Code. The
definition set forth here is intended to reasonably
balance the extension of any coverage of
contraceptive services under the HRSA Guidelines to
as many women as possible, while respecting the
unique relationship between certain religious
employers and their employees in certain religious
positions. The change in policy effected by
this amendment to these interim final rules is
intended solely for purposes of PHS Act section 2713
and the companion provisions of ERISA and the
Internal Revenue Code.
Because HRSA's
discretion to establish an exemption applies only to
group health plans sponsored by certain [Page
46624]religious employers and group health insurance
offered in connection with such plans, health
insurance issuers in the individual health insurance
market would not be covered under any such
exemption.
Section 9833 of the Code, section 734 of ERISA,
and section 2792 of the PHS Act authorize the
Secretaries of the Treasury, Labor, and HHS
(collectively, the Secretaries) to promulgate any
interim final rules that they determine are
appropriate to carry out the provisions of chapter
100 of the Code, part 7 of subtitle B of title I of
ERISA, and part A of title XXVII of the PHS Act,
which include PHS Act sections 2701 through 2728 and
the incorporation of those sections into ERISA
section 715 and Code section 9815. The amendments
promulgated in this rulemaking carry out the
provisions of these statutes. Therefore, the
foregoing interim final rule authority applies to
these amendments.
Under the Administrative Procedure Act (APA) (5
U.S.C. 551, et seq.), while a general notice of
proposed rulemaking and an opportunity for public
comment is generally required before promulgation of
regulations, an exception is made when an agency,
for good cause, finds that notice and public comment
thereon are impracticable, unnecessary, or contrary
to the public interest. The provisions of the APA
that ordinarily require a notice of proposed
rulemaking do not apply here because of the specific
authority to issue interim final rules granted by
section 9833 of the Code, section 734 of
ERISA, and section 2792 of the PHS Act.
Even if the APA requirements for notice and
comment were applicable to these regulations, they
have been satisfied. This is because the Secretaries
find that providing for an additional opportunity
for public comment is unnecessary, as the July 19,
2010 interim final rules implementing section 2713
of the PHS Act provided the public with an
opportunity to comment on the implementation of the
preventive services requirements in this provision,
and the amendments made in these interim final rules
in fact are based on such public comments.
Specifically, commenters
expressed concerns that HRSA-supported guidelines
issued under section 2713(a)(4) that included
coverage of contraceptive services could impinge
upon the religious freedom of certain religious
employers. The flexibility that is afforded
under these amendments is being provided to HRSA in
order to allow HRSA the discretion to accommodate,
in a balanced way, as discussed above, these
commenter concerns.
In addition, the Departments have determined that
an additional opportunity for public comment would
be impractical and contrary to the public interest.
The requirement in section 2713(a)(4) that
preventive services supported by HRSA be provided
without cost-sharing took effect at the beginning of
the first plan or policy year beginning on or after
September 23, 2010. At that time, however, HRSA had
not issued any such guidelines. Under the July 19,
2010 interim final rules, group health plans and
insurance issuers do not have to begin covering
preventive services supported in HRSA guidelines
until the first plan or policy year that begins one
year after the guidelines are issued. Thus, while
the law requiring coverage of recommended women's
preventive health services was enacted on March 23,
2010, and has been in effect since September 23,
2010, no such guidelines have yet been issued, and
it will be at least a full year after they are
issued before group health plans and issuers will be
required to start covering preventive services
recommended in the guidelines without cost sharing.
The July 19, 2010 interim final rules indicated
that HRSA expected to issue guidelines by August 1,
2011. After considering public comments raising the
issue addressed in these amendments, however, the
Departments determined that HRSA should be granted
the discretion to address the commenter concerns at
issue prior to issuing guidelines under section
2713(a)(4). Many college student policy years begin
in August and an estimated 1.5 million young adults
are estimated to be covered by such policies.5
Providing an opportunity for public comment as
described above would mean that the guidelines could
not be issued until after August of 2011. This delay
would mean that many students could not benefit from
the new prevention coverage without cost-sharing
following from the issuance of the guidelines until
the 2013-14 school year, as opposed to the 2012-13
school year. Similarly, 2008 data from the
Department of Labor indicate that over 4 million
Americans have ERISA group health plan coverage that
starts in August or September; they too would
experience over a year's delay in the receipt of the
new benefit if the public comment period delayed the
issuance of the guidance for over a month. The
Departments have determined that such a delay in
implementation of the statutory requirement that
women receive vital preventive services without
cost- sharing would be contrary to the public
interest because it could result in adverse health
consequences that may not otherwise have occurred.
While the Departments have determined that, even
if the APA were applicable, issuing these
regulations in proposed form, so they would not
become effective until after public comment, would
be contrary to the public interest in the case of
these amendments, the Departments are issuing these
amendments as interim final rules so as to provide
the public with an opportunity for public comment on
these amendments.
The APA also generally requires that a final rule
be effective no sooner than 30 days after the date
of publication in the Federal Register. This 30-day
delay in effective date can be waived, however, if
an agency finds good cause why the effective date
should not be delayed, and the agency incorporates a
statement of the findings and its reasons in the
rule issued.
As indicated above, many college student policy
years begin in August. Delaying the effective date
of this amendment by 30 days would mean that the
HRSA guidelines could not be issued until after
August of 2011. This delay would mean many students
could not benefit from the new prevention coverage
without cost-sharing following from the issuance of
the guidelines until the 2013-14 school year, as
opposed to the 2012-13 school year. As discussed
above, all other participants, beneficiaries and
enrollees in plans or policies with a plan or a
policy year beginning in the months between August 1
and whenever a final rule would be published should
the Departments provide a pre- promulgation
opportunity for public comment would face a similar
one- year delay in receiving these important health
benefits. The Departments have determined that such
a delay in implementation of the statutory
requirement that women receive vital preventive
services without cost-sharing would be impracticable
and contrary to the public interest because it could
result in adverse health consequences that may not
otherwise have occurred. Therefore, the Departments
are waiving the 30-day delay in effective date of
these amendments.
[Page 46625]
A. Executive Orders 13563 and 12866--Department
of Labor and Department of Health and Human Services
Executive Orders 13563 and 12866 direct agencies
to assess all costs and benefits of available
regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that
maximize net benefits (including potential economic,
environmental, public health and safety effects,
distributive impacts, and equity). Executive Order
13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility.
This rule has been designated a "significant
regulatory action,'' although not economically
significant, under section 3(f) of Executive Order
12866. Accordingly, the rule has been reviewed by
the Office of Management and Budget.
1. Need for Regulatory Action
As stated earlier in this preamble, the
Departments previously issued interim final
regulations implementing PHS Act section 2713 that
were published in the Federal Register on July 19,
2010 (75 FR 41726). Comments received in response to
the interim final regulations raised the issue of
imposing on certain religious employers through
binding guidelines the requirement to cover
contraceptive services that would be in conflict
with the religious tenets of the employer. The
Departments have determined that it is appropriate
to amend the interim final rules to provide HRSA the
discretion to exempt from its guidelines group
health plans maintained by certain religious
employers where contraceptive services are
concerned.
2. Anticipated Effects
The Departments expect that this amendment will
not result in any additional significant burden or
costs to the affected entities.
B. Special Analyses--Department of the Treasury
Notwithstanding the determinations of the
Department of Labor and Department of Health and
Human Services, for purposes of the Department of
the Treasury, it has been determined that this
Treasury decision is not a significant regulatory
action for purposes of Executive Order 12866.
Therefore, a regulatory assessment is not required.
It has also been determined that section 553(b) of
the APA (5 U.S.C. chapter 5) does not apply to these
interim final regulations. For the applicability of
the RFA, refer to the Special Analyses section in
the preamble to the cross-referencing notice of
proposed rulemaking published elsewhere in this
issue of the Federal Register. Pursuant to section
7805(f) of the Code, these temporary regulations
have been submitted to the Chief Counsel for
Advocacy of the Small Business Administration for
comment on their impact on small businesses.
C. Paperwork Reduction Act
As stated in the previously issued interim final
regulations, this rule is not subject to the
requirements of the Paperwork Reduction Act of 1980
(44 U.S.C. 3501 et seq.) because it does not contain
a "collection of information'' as defined in 44
U.S.C. 3502 (11).
V. Statutory Authority
The Department of the Treasury temporary
regulations are adopted pursuant to the authority
contained in sections 7805 and 9833 of the Code.
The Department of Labor interim final regulations
are adopted pursuant to the authority contained in
29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169,
1181-1183, 1181 note, 1185, 1185a, 1185b, 1185c,
1185d, 1191, 1191a, 1191b, and 1191c; sec. 101(g),
Pub. L. 104-191, 110 Stat. 1936; sec. 401(b), Pub.
L. 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec.
512(d), Pub. L. 110-343, 122 Stat. 3881; sec. 1001,
1201, and 1562(e), Pub. L. 111-148, 124 Stat. 119,
as amended by Pub. L. 111- 152, 124 Stat. 1029;
Secretary of Labor's Order 3-2010, 75 FR 55354
(September 10, 2010).
The Department of Health and Human Services
interim final regulations are adopted pursuant to
the authority contained in sections 2701 through
2763, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg
through 300gg-63, 300gg-91, and 300gg-92), as
amended.
List of Subjects
26 CFR Part 54
Excise taxes, Health care, Health insurance,
Pensions, Reporting and recordkeeping requirements.
29 CFR Part 2590
Continuation coverage, Disclosure, Employee benefit
plans, Group health plans, Health care, Health
insurance, Medical child support, Reporting and
recordkeeping requirements.
45 CFR Part 147
Health care, Health insurance, Reporting and
recordkeeping requirements, and State regulation of
health insurance.
Department of the Treasury
Internal Revenue Service
26 CFR Chapter 1
Accordingly, 26 CFR part 54 is amended as
follows:
PART 54--PENSION EXCISE TAXES
0 Paragraph 1. The authority citation for part 54
continues to read as follows: Authority: 26 U.S.C.
7805. * * *
0 Par. 2. Section 54.9815-2713T is amended by
revising paragraph (a)(1)(iv) to read as follows:
Sec. 54.9815-2713T Coverage of preventive health
services (temporary).
(a) * * *
(1) * * *
(iv) With respect to women, to the extent not
described in paragraph (a)(1)(i) of this section,
preventive care and screenings provided for in
binding comprehensive health plan coverage
guidelines supported by the Health Resources and
Services Administration and developed in accordance
with 45 CFR 147.130(a)(1)(iv). * * * * *
Department of Labor
Employee Benefits Security Administration
29 CFR Chapter XXV
29 CFR part 2590 is amended as follows:
PART 2590--RULES AND REGULATIONS FOR GROUP HEALTH
PLANS
0 1. The authority citation for part 2590
continues to read as follows: Authority: 29 U.S.C.
1027, 1059, 1135, 1161-1168, 1169, 1181- 1183, 1181
note, 1185, 1185a, 1185b, 1185c, 1185d, 1191, 1191a,
1191b, and 1191c; sec. 101(g), Pub. L. 104-191, 110
Stat. 1936; sec. 401(b), Pub. L. 105-200, 112 Stat.
645 (42 U.S.C. 651 note); sec. 512(d), Pub. L.
110-343, 122 Stat. 3881; sec. 1001, 1201, and
1562(e), Pub. L. 111-148, 124 Stat. 119, as amended
by Pub. L. 111- 152, 124 Stat. 1029; Secretary of
Labor's Order 3-2010, 75 FR 55354 (September 10,
2010). Subpart C--Other Requirements
0 2. Section 2590.715-2713 is amended by revising
paragraph (a)(1)(iv) to read as follows:
Sec. 2590.715-2713 Coverage of preventive health
services.
(a) * * *
(1) * * *
(iv) With respect to women, to the extent not
described in paragraph
[Page 46626]
(a)(1)(i) of this section, preventive care and
screenings provided for in binding comprehensive
health plan coverage guidelines supported by the
Health Resources and Services Administration and
developed in accordance with 45 CFR
147.130(a)(1)(iv). * * * * *
Department of Health and Human Services
For the reasons stated in the preamble, the
Department of Health and Human Services amends
45 CFR part 147 as follows:
PART 147--HEALTH INSURANCE REFORM REQUIREMENTS
FOR THE GROUP AND INDIVIDUAL HEALTH INSURANCE
MARKETS
0 1. The authority citation for part 147
continues to read as follows:
Authority: 2701 through 2763, 2791, and 2792 of
the Public Health Service Act (42 U.S.C. 300gg
through 300gg-63, 300gg-91, and 300gg-92), as
amended.
0 2. Section 147.130 is amended by revising
paragraph (a)(1)(iv) to read as follows:
Sec. 147.130 Coverage of preventive health
services.
(a) * * *
(1) * * *
(iv) With respect to women, to the extent not
described in paragraph (a)(1)(i) of this section,
preventive care and screenings provided for in
binding comprehensive health plan coverage
guidelines supported by the Health Resources and
Services Administration.
(A) In developing the
binding health plan coverage guidelines specified in
this paragraph (a)(1)(iv), the Health Resources and
Services Administration shall be informed by
evidence and may establish exemptions from such
guidelines with respect to group health plans
established or maintained by religious employers and
health insurance coverage provided in connection
with group health plans established or maintained by
religious employers with respect to any requirement
to cover contraceptive services under such
guidelines.
(B) For purposes of
this subsection, a "religious employer'' is an
organization that meets all of the following
criteria:
(1) The inculcation of
religious values is the purpose of the organization.
(2) The organization
primarily employs persons who share the religious
tenets of the organization.
(3) The organization serves
primarily persons who share the religious tenets of
the organization.
(4) The organization is a
nonprofit organization as described in section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of
the Internal Revenue Code of 1986, as amended. * * *
* *
Steven T. Miller, Deputy Commissioner for
Services and Enforcement, Internal Revenue Service.
Approved: July 28, 2011.
Emily S. McMahon, Acting Assistant Secretary of the
Treasury (Tax Policy).
Signed this 29th day of July 2011.
Phyllis C. Borzi, Assistant Secretary, Employee
Benefits Security Administration, Department of
Labor. OCIIO-9992-IFC2
(Catalog of Federal Domestic Assistance Program
No. 93.773, Medicare--Hospital Insurance; and
Program No. 93.774, Medicare-- Supplementary Medical
Insurance Program)
Dated: July 28, 2011.
Donald M. Berwick, Administrator, Centers for
Medicare & Medicaid Services.
Approved: July 28, 2011.
Kathleen Sebelius, Secretary, Department of Health
and Human Services. [FR Doc. 2011-19684 Filed
8-1-11; 8:45 am] BILLING CODE 4120-01-P
Notes
1. The term "group health
plan'' is used in title XXVII of the PHS Act, part 7
of ERISA, and chapter 100 of the Code, and is
distinct from the term "health plan,'' as used in
other provisions of title I of the Affordable Care
Act. The term "health plan'' does not include
self-insured group health plans.
2. Code section 9815
incorporates the preemption provisions of PHS Act
section 2724. Prior to the Affordable Care Act,
there were no express preemption provisions in
chapter 100 of the Code.
3. Under PHS Act section
2713(a)(5), the Task Force recommendations regarding
breast cancer screening, mammography, and prevention
issued in or around November of 2009 are not to be
considered current recommendations on this subject
for purposes of PHS Act section 2713(a)(1). Thus,
the recommendations regarding breast cancer
screening, mammography, and prevention issued by the
Task Force prior to those issued in or around
November of 2009 (that is, those issued in 2002)
will be considered current until new recommendations
in this area are issued by the Task Force or appear
in comprehensive guidelines supported by HRSA
concerning preventive care and screenings for women,
which will be commonly known as HRSA's Women's
Preventive Services: Required Health Plan Coverage
Guidelines.
4. See 26 CFR 54.9815-1251T, 29
CFR 2590.715-1251 and 45 CFR 147.140 (75 FR 34538,
June 17, 2010).
5. Department of Health and
Human Services, Notice of Proposed Rulemaking on
Student Health Insurance Coverage (76 FR 7767,
February 22, 2011).