Comments requested on alternative accommodation for providing contraceptive services

The IRS, Department of Treasury, the Employee Benefits Security Administration, Department of Labor and the Centers for Medicare & Medicaid Services, Department of Health and Human Services (HHS) (collectively, the Departments), have jointly requested information through comments from all interested parties on whether there are alternative ways (beyond current regulations) for eligible organizations that object to providing coverage for contraceptive services on religious grounds to obtain an accommodation, while still ensuring that women enrolled in the organizations’ health plans have access to coverage of the full range of FDA-approved contraceptives without cost sharing.

Under the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, employers must provide certain types of health insurance coverage to their employees. Employers with objections to providing coverage for contraceptive services can invoke an accommodation under regulations promulgated by the Departments. Under the accommodation, the employer does not have to contract, arrange, pay, or provide a referral for contraceptive services. However, the accommodation ensures that women enrolled in the employer’s health plan receive full coverage for contraceptive services through the same issuers or third-party administrators that provide or administer the rest of their health coverage. An employer can invoke the accommodation by self-certifying its eligibility using a particular form, which it then provides to its health insurance issuer or third-party administrator. Alternatively, the employer can self-certify by providing certain information to the HHS, without use of a particular form.

The U.S. Supreme Court, in Zubik v. Burwell, 136 S. Ct. 1557 (2016), considered claims that, even with the accommodation, employers’ rights under the Religions Freedom Restoration Act of 1993 were being violated. The Court reviewed supplemental briefs submitted by the parties, and then remanded Zubik and other similar cases after vacating the judgments in those cases, to allow the parties to arrive at an approach that accommodates the employers’ objections without compromising health coverage. The Departments, consistent with this action by the Supreme Court, have issued a Request for Information (RFI) to determine whether modifications to the existing accommodation procedure could resolve the objections asserted by the objecting employers. Among other alternatives, the RFI asks for comments on whether it is feasible for issuers to implement the accommodation without written notification, whether the issuer should be required to offer women the opportunity to enroll in contraceptive-only insurance policies, and whether the affected women should be required to take affirmative steps to enroll in those contraceptive-only policies rather than being automatically eligible for payments. The RFI also asks for comments on alternative processes for the operation of the accommodation for self-insured plans.

Comments. The RFI specifies a number of ways by which information can be submitted to them, by electronic means, regular mail, express or overnight mail, or by hand or courier. Submitters are asked to choose only one of these methods to submit information. Information can be submitted as follows:

Electronically: Electronic comments may be submitted to http://www.reglations.gov; follow the “Submit a comment” instructions.

Regular mail: Mail written comments to Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-9931-NC, PO Box 8010, Baltimore, MD 21244-8010.

Express or overnight mail: Send written comments to Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-9931-NC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-8010.

Hand or courier: Deliver comments to 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, or for delivery in Baltimore, MD, send to Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.

SOURCE: 81 FR 47741, July 22, 2016.

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