First-Dollar Coverage for Women’s Preventive Care: Exemptions and the One-Year Safe Harbor

General Rule to Cover Preventive Services. The Patient Protection and Affordable Care Act (PPACA) requires that non-grandfathered group health plans provide benefits for certain preventive health services without imposing any co-payments, co-insurance, deductibles, or other cost-sharing requirements (often referred to as “first-dollar coverage”). This preventive services requirement was first effective for plan years beginning on or after September 23, 2010. The preventive services that must be covered are:

• Evidence-based items or services with an A or B rating recommended by the U.S. Preventive Services Task Force
• Immunizations for routine use in children, adolescents, or adults recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention
• Evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the U.S. Department of Health and Human Services’ Health Resources and Services Administration (HRSA) for infants, children, and adolescents
• Other evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by HRSA for women, as described in this article

Expansion of Preventive Care Coverage for Women. HRSA has issued its first guidelines pertaining to preventive care and screenings for women. The guidelines include coverage for a broad range of items and services, including contraceptive services, breastfeeding support and supplies, and screening and counseling for interpersonal and domestic violence. The guidelines are available at http://www.hrsa.gov/womensguidelines/. Group health plans are required to provide first-dollar coverage for these items and services starting with the first plan year that begins on or after August 1, 2012.

Exemption for Religious Employers. The HRSA guidelines exempt religious employers who object to covering contraceptive services due to the employer’s religious beliefs from the requirement to provide coverage for contraceptive services. A religious employer is defined as an organization that meets all of the following criteria:

• The inculcation of religious values is the purpose of the organization
• The organization primarily employs persons who share the religious tenets of the organization
• The organization serves primarily persons who share the religious tenets of the organization
• The organization is a nonprofit organization as described in Code §§ 6033(a)(1) and 6033(a)(3)(A)(i) or (iii) (these sections refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order)

Additionally, in subsequent guidance, the Internal Revenue Service, U.S. Department of Labor, and Department of Health and Human Services (collectively, “agencies”) announced a one-year safe harbor from agency enforcement for nonprofit employers that do not fit within the narrow definition of “religious employer” and do not currently cover contraceptive services under their plans because of their religious beliefs. Employers that wish to take advantage of this one-year safe harbor must certify that they are eligible for delayed implementation and provide notice in all application materials distributed in connection with plan enrollment. The agencies are now in the process of drafting regulations that are expected to allow non-grandfathered plans of non-exempted, nonprofit organizations with religious objections to covering contraceptive services to continue to exclude contraceptive coverage, while still requiring contraceptive coverage be provided directly to participants, such as through the plan’s insurer or TPA (in the case of self-insured plans).

What Employers Should Do Now

• Contact TPA and insurers to ensure that they are ready for the new preventive health services.
• Issue a summary of material modifications describing the additional preventive health services covered under your plan. The new benefits also should be addressed in your plan’s Summary of Benefits and Coverage (SBC), which is required to be distributed for open enrollment periods that begin on or after September 23, 2012 and to new participants in plan years beginning on or after September 23, 2012. Please keep in mind that, once you issue your SBC, any material change to its contents, including a positive change, requires a 60-day advance notice.
• For religious nonprofit employers that object to providing contraceptive coverage and would like to utilize the temporary safe-harbor from agency enforcement:
  • Include with all open enrollment materials the Notice available at http://tinyurl.com/99drbem (page five of the PDF)
  • Complete, sign, and date the Certification available at http://tinyurl.com/8ray6un (page six of the PDF)

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this alert or would like to discuss the topic further, please contact your Foley attorney or the following individuals:

Katherine L. Aizawa
San Francisco, California
415.438.6483
kaizawa@foley.com

Andrew D. Gregor
San Diego, California
619.685.6476
agregor@foley.com

Samuel F. Hoffman
San Diego, California
619.685.6414
shoffman@foley.com

Leigh C. Riley
Milwaukee, Wisconsin
414.297.5846
lriley@foley.com