Final Rules Regarding Religious & Moral Exemptions for Contraceptive Coverage: Issuance Pending

On November 7^th, 2018, the departments of HHS, Labor and the Treasury released PDF versions of their final rules (slated for publishing in the Federal Register on November 15^th, 2018) regarding protections for Americans with religious or moral objections to insurance-covered contraceptives.

In a Nutshell: After sifting through approximately 100,000 public comment submissions, HHS, the DOL, and the IRS finalized two rules aimed at detailing exemptions and accommodations for “religious beliefs” and “moral convictions” with respect to certain contraceptive coverage under the Affordable Care Act (“ACA”). Elements of each rule are summarized in Table 1. Categories of entities exempt from providing mandated coverage for contraceptives to which they object are listed below Table 1. For additional details, please check out the HHS Fact Sheet.

Background: below is a brief history surrounding these rules. To learn more, please read Compliancedashboard’s previous blog posts, the most recent accessible here.

• 2012: under the ACA, women enrolled in health plans and policies are guaranteed coverage for recommended preventive services, including contraceptives (without cost sharing).
• 2013: group health plans of “religious employers” were exempted from this coverage mandate. Based on statutory language, exempt religious employers meant churches and “houses of worship.” Additionally, this rule accommodated “non-profit” religious organizations who fit specific criteria.
• 2014: HHS and the DOL permitted eligible organizations to inform the departments of their religious objections and, in effect, request the agency to coordinate coverage details with the insurer to avoid “arranging payment” for contraceptive services not supported by their beliefs. Also in 2014, in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), agencies expanded the accommodation to certain closely held for-profit organizations whose ownership held a sincere religious belief against providing coverage for some or all contraceptive services.
• 2017: agencies requested public comment on interim final rules.
• 2018: publication of the final rules is expected on November 15^th and will take effect sixty days after publication.

Table 1

Exempted Entities: the regulations exempt entities only from providing an otherwise mandated contraceptive item to which they object on the basis of their religious beliefs or moral conviction. The entities include:

• Churches, integrated auxiliaries, and religious orders with religious objections;
• Nonprofit organizations with religious or moral objections;
• For-profit entities that are not publicly traded, with religious or moral objections;
• For-profit entities that are publicly traded, with religious objections;
• Other non-governmental employers with religious objections;
• Non-governmental institutions of higher education with religious or moral objections;
• Individuals with religious or moral objections, with employer sponsored or individual market coverage, where the plan sponsor and/or issuer (as applicable) are willing to offer them a plan omitting contraceptive coverage to which they object; and
• Issuers with religious or moral objections, to the extent they provide coverage to a plan sponsor or individual that is also exempt.