The Departments of Labor, Health and Human Services, and the Treasury have issued an advance notice of proposed rulemaking (ANPRM) (pdf) in order to solicit comments for proposed amendments to a recently-issued rule on preventive health services that non-grandfathered health plans must cover without any cost-sharing. The current rule exempts group health plans and group health insurance coverage sponsored by certain religious employers from having to provide contraception coverage. Other non-exempt religious-affiliated employers – such as religious schools and hospitals – that provide health coverage to their employees have been given an additional year to comply with the requirement that their plans include contraception coverage. The proposed rule for which the agencies seek input will outline potential accommodations for non-exempt religious organizations while also “ensuring contraceptive coverage for plan participants and beneficiaries covered under their plans (or, in the case of student health insurance plans, student enrollees and their dependents) without cost sharing.”
Specifically, the ANPRM outlines its draft proposals to implement the compromise the administration announced in February. Under this compromise, insurance companies will be required to offer contraception coverage directly to individuals who want it if the religious employer declines to do so. Religious organizations would not be required to provide contraceptive coverage nor would they be required to refer their employees to organizations that provide contraception or subsidize the cost of contraception.
The ANPRM suggests some options of implementing this compromise and seeks input on how to achieve these steps. For example, as a preliminary matter, the agencies seek comment on which entities should be considered “religious organizations” for purpose of the religious accommodation. The agencies are also considering a process for self-certification “that will be used for the temporary enforcement safe harbor referenced in the final regulations.” In addition, the agencies “seek comment on whether the definition of religious organization should include religious organizations that provide coverage for some, but not all, FDA-approved contraceptives consistent with their religious beliefs.”
For self-insured plans, the agencies are considering options that would allow religious organizations that self-insure to use third-party administrators or other independent entities to cover the cost of contraception coverage. One possible approach is to allow a third-party administrator “to use revenue that is not already obligated to plan sponsors such as drug rebates, service fees, disease management program fees, or other sources. These funds may inure to the third-party administrator rather than the plan or its sponsor and drug rebates, for example, could be larger if contraceptive coverage were provided.”
Another possibility under consideration is to have the third-party administrator receive a credit or rebate on the amount that it pays under the Affordable Care Act’s reinsurance program.
A third approach would have the third-party administrator separately arrange for contraceptive coverage.
The ANPRM explains that the new rule might generate certain notice requirements, as well as potential conflicts with changes the Affordable Care Act made to the Public Health Service (PHS) Act, such as coverage denial appeals and grievance rights. The agencies seek input on which PHS protections should/should not apply to contraceptive coverage. Moreover, the ANPRM is soliciting input on “ways to structure the contraceptive-only benefit as a benefit separate from the insured group coverage other than as an excepted benefit.”
Comments in response to this ANPRM are due within 90 days after its publication in the Federal Register, which is scheduled for March 21, 2012. Comments must reference the file code CMS-9968-ANPRM, and may be submitted electronically through the federal eRulemaking portal or by mail to: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-9968-ANPRM, P.O. Box 8016, Baltimore, MD 21244-1850 or hand-delivery 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.
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