Appendix "I"

(i) 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 with respect to the individual involved (except as otherwise provided in paragraph (c) of this section);

(i) essentially repeats  §300gg-13(a)(1) in the statute.

(ii) 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 with respect to the individual involved (for this purpose, a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention is considered in effect after it has been adopted by the Director of the Centers for Disease Control and Prevention, and a recommendation is considered to be for routine use if it is listed on the Immunization Schedules of the Centers for Disease Control and Prevention);

(ii) is drawn from §300gg-13(a)(2) in the statute, and explains how recommendations will be identified.

(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.

Subsection (iv) refers to legal guidelines that set out required "preventive care and screenings".  The meaning and effect of the regulation depends upon those guidelines.

(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.

(A) Note the word "may."  There is no requirement to provide an exemption, and any exemption provided can be revised or revoked by the Department.  "Contraceptive services" are defined in legal guidelines, not in this regulation. 

In issuing guidelines under § 147.130(a)(1)(iv), the Health Resources and Services Administration may establish an exemption from such guidelines with respect to a group health plan established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer) with respect to any requirement to cover  contraceptive services under such
guidelines.

Note the word "may."  There is no requirement to provide an exemption, and any exemption provided can be revised or revoked by the Department.  "Contraceptive services" are defined in legal guidelines, not in this regulation. 

The term "contraceptives," as it is used in the guidelines (and, thus, the regulation) includes sterilization and drugs and devices that may cause the death of a human embryo before implantation ("embryocide").

For purposes of this paragraph (a), a "religious employer" is an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended.

The definitions in the IRC Code are narrow and well-established: entities like churches, houses of worship, religious orders. For this reason, the proposed amendment does not substantially change the definition of religious employer, though it does appear to extend the exemption to include religious orders. Under the current regulation, Catholic religious orders, for example, are required to provide the defined services.

An eligible organization is an organization that satisfies all of the following requirements:

Individual citizens are not exempt.

(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under §147.130(a)(1)(iv) on account of religious objections.

Excludes non-religious conscientious objections. This is consistent with the U.S. First Amendment, which refers to the free exercise of religion, not the free exercise of conscience.

(2) The organization is organized and operates as a nonprofit entity.

Businesses are not exempt.

(3) The organization holds itself out as a religious organization.

Excludes non-religious organizations. This is consistent with the U.S. First Amendment, which refers to the free exercise of religion, not the free exercise of conscience.

 However, this is broad enough to permit exemption of religious orders, which, under the previous regulation, would have been required to provide the defined services.

(4) The organization self-certifies, in a form and manner specified by the Secretary, that it
satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such
self-certification available for examination upon request by the first day of the first plan year to
which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.

A record in a required form must be kept of an organization's eligibility and the services to which it objects.

(1) General rule. A group health plan established or maintained by an eligible organization that provides benefits through one or more group health insurance issuers complies for one or more plan years with any requirement under § 147.130(a)(1)(iv) to provide contraceptive coverage if the eligible organization or group health plan furnishes a copy of the self-certification described in paragraph (b)(4) of this section to each issuer that would otherwise provide such coverage in connection with the group health plan. An issuer may not require any documentation other than the copy of the self-certification from the eligible organization regarding its status as such.

The organization must notify its insurance provider of its objections.

(2) Payments for contraceptive services--(i) A group health insurance issuer that receives
a copy of the self-certification described in paragraph (b)(4) of this section with respect to a
group health plan established or maintained by an eligible organization in connection with which the issuer would otherwise provide contraceptive coverage under § 147.130(a)(1)(iv) must -

(ii) With respect to payments for contraceptive services, the issuer may not impose any cost sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries. The issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services. The issuer must provide payments for contraceptive services in a manner that is consistent with the requirements under sections 2706, 2709, 2711, 2713, 2719, and 2719A of the PHS Act. If the group health plan of the eligible organization provides coverage for some but not all of any contraceptive services required to be covered under § 147.130(a)(1)(iv), the issuer is required to provide payments only for those contraceptive services for which the group health plan does not provide coverage. However, the issuer may provide payments for all contraceptive services, at the issuer's option.

The health insurance company must bear all costs, including the cost of contraceptive sterilization, which can be expensive. It is not clear how they can be prevented from passing on the costs to the objecting organization, or if the government will allow them to deduct the costs from their taxes.

For each plan year to which the accommodation in paragraph (c) of this section is to apply, an issuer required to provide payments for contraceptive services pursuant to paragraph (c) of this section must provide to plan participants and beneficiaries written notice of the availability of separate payments for contraceptive services contemporaneous with (to the extent possible), but separate from, any application materials distributed in connection with enrollment (or re-enrollment) in group health coverage that is effective beginning on the first day of each applicable plan year. The notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the issuer provides separate payments for contraceptive services, and must provide contact information for questions and complaints. The following model language, or substantially similar language, may be used to satisfy the notice requirement of this paragraph (d):

The insurance provider, not the objecting organization, must notify beneficiaries.

The provisions of this section apply to student health insurance coverage arranged by an eligible organization that is an institution of higher education in a manner comparable to that in which they apply to group health insurance coverage provided in connection with a group health plan established or maintained by an eligible organization that is an employer. In applying this section in the case of student health insurance coverage, a reference to "plan participants and beneficiaries" is a reference to student enrollees and their covered dependents.

Post-secondary institutions.