Proposed Rule

Coverage of Certain Preventive Services
Under the Affordable Care Act

Federal Register, 6 February, 2013, p. 8456-8476

Amendments to rules regarding coverage for certain preventive services under section 2713 of the Public Health Service Act.

[Original text: 78 FR 8456]

PART 147-HEALTH INSURANCE REFORM REQUIREMENTS FOR THE GROUP AND INDIVIDUAL HEALTH INSURANCE MARKETS

§ 147.130 Coverage of preventive health services.

(a) Services -(1) In general.

Proposed Amendment

Existing Regulation		Proposed Replacement
Beginning at the time described in paragraph (b) of this section, a group health plan, or a health insurance issuer offering group or individual health insurance coverage, must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services:		Beginning at the time described in paragraph (b) of this section and subject to §147.131, a group health plan, or a health insurance issuer offering group or individual health insurance coverage, must provide coverage for all of the following items and services, and may not impose any cost sharing requirement (such as a copayment, coinsurance, or a deductible) with respect to those items and services:

Proposed Amendment

§ 147.131 Exemption and accommodations in connection with coverage of preventive health services.

(a) Religious employers.

Existing Regulation		Proposed Replacement
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.		In issuing guidelines under §147.130(a)(1)(iv), the Health Resources and Services Administration mayNote 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.  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 servicesThe 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"). under such guidelines. 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.

Proposed Amendment (new sections added)

(b) Eligible organizations.

An eligible organizationIndividual citizens are not exempt. is an organization that satisfies all of the following requirements:

(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 religiousThis does not appear to include conscientious objections that do not have a religious basis. This is consistent with the U.S. First Amendment, which refers to the free exercise of religion, not the free exercise of conscience. The proposed regulation appears to be based on a narrow reading of the American Constitution. objections.

(2) The organization is organized and operates as a nonprofit entityBusinesses are not exempt..

(3) The organization holds itself out as a religiousThis does not appear to include conscientious objections that do not have a religious basis. This is consistent with the U.S. First Amendment, which refers to the free exercise of religion, not the free exercise of conscience. The proposed regulation appears to be based on a narrow reading of the American Constitution. organization.

(4) The organization maintains in its records a self-certificationA record must be kept of the services to which the organization objects., made in the manner and
form specified by the Secretary of Health and Human Services, for each plan year to which the
accommodation is to apply, executed by a person authorized to make the certification on behalf of the organization, indicating that the organization satisfies the criteria in paragraphs (b)(1) through (3) of this section, and, specifying those contraceptive services for which the
organization will not establish, maintain, administer, or fund coverage, and makes such
certification available for examination upon request.

(c) Contraceptive coverage - insured group health plan coverage.

(1) A group health plan established or maintained by an eligible organization and that provides benefits through one or more issuers complies with any requirement under § 147.130(a)(1)(iv) to provide contraceptive coverage if the eligible organization or plan administrator furnishesThe organization must notify its insurance provider of its objections. each issuer that would otherwise provide coverage for any contraceptive services required to be covered under § 147.130(a)(1)(iv) with a copy of the self-certification described in paragraph (b)(4) of this section.

(2) 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 plan for which the issuer would otherwise
provide coverage for any contraceptive services required to be covered under § 147.130(a)(1)(iv) must automatically provide health insurance coverage for any contraceptive services required to be covered by § 147.130(a)(1)(iv) and identified in the self-certification, through a separate health insurance policy that is excepted under § 148.220(b)(7) of this subtitle, for each plan participant and beneficiary. The issuer providing the individual market excepted benefits policy may not impose any cost sharing requirementThe 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. (such as a copayment, coinsurance, or a deductible) with respect to coverage of those services, or impose any premium, fee, or other charge, or portion thereof, directly or indirectly, on the eligible organization, its group health plan, or plan participants or beneficiaries with respect to coverage of those services.

(d) Notice of availability of contraceptive coverage.

An issuerThe insurance provider, not the objecting organization, must notify beneficiaries. providing contraceptive coverage arranged pursuant to paragraph (c) of this section must provide to plan participants and beneficiaries written notice of the availability of the contraceptive coverage, separate from but contemporaneous with (to the extent possible) application materials distributed in connection with enrollment (or re-enrollment) in group coverage of the eligible organization for any plan year to which this paragraph applies. The following model language, or substantially similar language, may be used to satisfy the notice requirement of this paragraph:

"The organization that establishes and maintains, or arranges, your health coverage has certified that your [group health plan/student health insurance coverage] qualifies for an accommodation with respect to the federal requirement to cover all Food and Drug Administration-approved contraceptive services for women, as prescribed by a health care provider, without cost sharing. This means that your health coverage will not cover the following contraceptive services: [contraceptive services specified in self-certification]. Instead, these contraceptive services will be covered through a separate individual health insurance policy, which is not administered or funded by, or connected in any way to, your health coverage. You and any covered dependents will be enrolled in this separate individual health insurance policy at no additional cost to you. If you have any questions about this notice, contact [contact information for health insurance issuer]."

(e) Application to student health insurance coverage.

The provisions of this section apply to student health insurance coverage arranged by an eligible organization that is an institution of higher educationPost-secondary institutions. 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. 

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Notes

Provided by the Protection of Conscience Project

1.  "The New Health Care Reform Law:  How Will it Affect Non-Profit Employers?"  The Arc, National Policy Matters, Issue #9, July 15, 2012.