The Departments of Health and Human Services, Treasury, and Labor put forth two final rules on November 7th 2018, concerning coverage of certain types of birth control under the Affordable Care Act (ACA).
While the ACA has never required contraceptives to be covered under health insurance, many individual state laws do require this coverage. However, many plans “grandfathered” into the ACA system were able to keep their exemption status and not offer coverage for some or all contraceptives. This changed in 2011, when the Departments of Health and Human Services, Treasury, and Labor mandated that all non-grandfathered plans offer all “FDA-approved contraceptive methods, sterilization procedures, and related education and counseling.”
A very narrow exemption was offered for religious organizations and churches. The new rules would expand exemptions to coverage of contraceptives on two fronts: religious beliefs and moral convictions.
For “sincerely held religious beliefs,” the same entities are protected now as were already protected in 2017: “a church, an integrated auxiliary of a church, a convention or association of churches, or a religious order; a nonprofit organization; for-profit entities; an institution of higher education in arranging student health insurance coverage; and, in certain circumstances, issuers and individuals.”
However, the expanded exemption basically goes beyond churches and individual employers to include any non-government entity, even if it is a union or sponsor of a multiemployer plan (Section III (D) of document).
Moreover, the exemptions only apply “to the extent” of objections due to the entities’ sincerely held religious beliefs, meaning “entities that hold a requisite objection to covering some, but not all, contraceptive items would be exempt with respect to the items to which they object, but not with respect to the items to which they do not object” (Section III (B) of document).
This is not a ban on contraceptive coverage, and any entity which would otherwise be considered exempt can always opt-in to coverage of any and all FDA-approved contraception choices. This new rule also clarifies that if the plan is issued from an exempted entity, all employers under that entity are also exempt.
For “sincerely held moral convictions,” non-governmental organizations are again the only entities which can use such an exemption, and may include non-profits organizations, for-profit entities which have no publicly traded ownership interests, institutes of higher education, and group policy issuers. As with the religious exemption, the moral conviction exemption is only applicable to the extent of the objections.
While many commenters on the new rules stated their worry that the moral conviction exception would be used loosely by many entities and therefore contraception coverage for women would decrease significantly, the Departments did as much research as possible and found the impact of adopting these new rules would be quite minimal for women, since only 2 non-religious entities are known to have come forward as also wanting an exception to some of the contraceptive coverage.
In fact, “Both of those entities have fewer than five employees enrolled in health coverage, and both require all of their employees to agree with their opposition to the nature of certain contraceptives subject to coverage under the Mandate [the Affordable Care Act’s insurance mandate]” (Section III (A2) of document).
Overall, one of the biggest push-backs to these new rules was the concern that both would leave millions of women without contraceptive coverage in their healthcare plan. Commenters estimated anywhere from 55-100 million women may now bear the out-of-pocket cost of some contraceptives (Section IV (A.2.d.) of document). However, the Departments point out several factors affecting the ability to estimate the number of women who will be affected by the new rules, and they state that, overall, the number of women affected by the new rules is likely to be quite small compared to the number of women who will still have coverage under the mandate.
Aside from the new rules expanding exemptions of contraceptive coverage in insurance for religious and moral convictions, one other rule has been proposed regarding insurance.
Current rules already state that if abortion coverage is included in a health plan, the payments for the abortion coverage portion of the insurance and the rest of the insurance coverage must be made by separate deposits (or deductions from a paycheck). While no action was originally specified concerning how the separate payments must be collected, several options were given for guidance on collecting such payments. The new rules merely specify only one of the original guiding options is now required to be used to collect the separate payments, namely, the insurance issuer must now send two bills to all users who pay for abortion coverage in their insurance plan. A person may still choose to pay both bill portions in one transaction without losing their healthcare coverage, however, so the worry that people will have to write two checks or make two online payments is unfounded.
The new interim rules and proposed rules help protect the religious and moral freedom of employees and employers and strengthen the integrity of the healthcare exchange system.