The Center for Consumer Information and Insurance Oversight (CCIIO) has released a new guidance document (pdf) that addresses the temporary enforcement safe harbor of the Affordable Care Act (ACA) provision requiring certain employers, group health plans, and group health insurance issuers to cover contraception services without cost sharing.

Regulations issued under the Affordable Care Act (ACA) expanded the types of women’s health preventive services – including birth control – that must be covered without any cost-sharing by non-grandfathered health plans. Regulations exempt from this requirement those employers whose “primary purpose” is to instill religious values. For the purposes of this exemption, a religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization. Other non-exempt religious-affiliated employers that provide health coverage to their employees, however, were given an additional year to comply with the requirement that their plans include contraception coverage. The new CCIIO guidance issued on August 15, 2012 describes in greater detail this temporary enforcement safe harbor.

Generally, the guidance reiterates that the safe harbor:

is available to non-exempted, non-grandfathered group health plans established or maintained by non-profit organizations whose plans have consistently not covered all or the same subset of contraceptive services for religious reasons at any point from . . . February 10, 2012 onward . . . This temporary enforcement safe harbor provides an additional year for these group health plans and group health insurance issuers (i.e., until the first plan year beginning on or after August 1, 2013).

Agencies will not take enforcement action against an employer or group health plan during this period so long as the following conditions are met:

1. The organization is organized and operates as a non-profit entity.
2. From February 10, 2012 onward, the group health plan established or maintained by the organization has consistently not provided all or the same subset of the contraceptive coverage otherwise required at any point because of the religious beliefs of the organization. A group health plan or group health insurance issuer that took action (unsuccessfully) before Feb. 10, 2012 to exclude or limit contraception services from coverage due to religious objections would also be eligible for the safe harbor.
3. The group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) must provide to participants with a notice stating that some or all contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
4. The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed herein.

The guidance includes also a sample Notice to Plan Participants and Certification related to the temporary safe harbor.

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