DraftMedicarePolicy N/A

Accommodation for contraceptive coverage for religious organizations

ANPRM describing intended regulations to provide an accommodation allowing certain non-exempt, non-profit religious organizations (and comparable student health plans) to avoid contracting, arranging, or paying for contraceptive coverage while ensuring participants receive contraceptive services without cost sharing. Affects sponsors of group and student health plans, issuers, and independent entities.

Policy Summary

PayerMedicare

PolicyAccommodation for contraceptive coverage for religious organizations

Policy CodePolicy N/A

Change TypeANPRM / Regulatory proposal

Effective DateN/A

Next Review DateN/A

Key ActionIssuers or independent entities must provide contraceptive coverage without cost sharing to participants, independent of the religious organization.

SourceLink

POLICY UPDATE CHANGES

No material clinical or coverage changes in this revision.

90-daypublic comment period for ANPRM

Aug 1, 2012HRSA guideline coverage effective date for plans

Aug 1, 2013target effective date for amended final regs

28States referenced with requirements

Accommodation Coverage Criteria

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inv-01: Accommodation coverage criteria

Planned approach for insured and student plans and options for self-insured plans:

Policy goal: Maintain contraceptive coverage without cost sharing for participants of plans sponsored by non-exempt, non-profit religious organizations while protecting those organizations from having to provide, contract for, arrange, or pay for such coverage.

Insured and student plans: Issuers of insured group health plans (and issuers of student health insurance plans arranged by qualifying institutions of higher education) must provide contraceptive coverage directly and without charge to participants and beneficiaries, independent of the sponsoring religious organization.

Self-insured plans: A third-party administrator (TPA) or other independent entity would assume responsibility for providing contraceptive coverage for self-insured plans sponsored by qualifying religious organizations; the Departments propose multiple options for how such coverage could be arranged and financed and seek comment.

Eligibility scope: The accommodation would apply to some or all organizations that qualified for the temporary enforcement safe harbor (non-exempt, non-profit organizations that did not cover some or all contraceptives as of Feb 10, 2012) and possibly to additional organizations; Departments seek comment on the definition of 'religious organization'.

Self-certification and notice: Departments are considering a self-certification process whereby an authorized individual certifies the organization's eligibility and makes that certification available for examination; the independent entity (issuer or TPA) would be put on notice and required to provide contraceptive coverage without charging the religious organization.

Notice to participants: Under the accommodation, the independent entity would assume responsibility for notifying participants and beneficiaries about the separate contraceptive coverage and for administering those benefits.

Scope of covered services: 'Contraceptive coverage' means the contraceptive services required under the HRSA Guidelines (all FDA‑approved methods, sterilization procedures, and counseling for women of reproductive capacity), subject to reasonable medical management techniques.

Timing: The Departments intend to propose amended regulations to be effective by the end of the temporary enforcement safe harbor so that amended rules would apply to plan years starting on or after August 1, 2013.

inv-02: accommodation coverage criteria — Proposed conditions under which a religious organization's group health plan need not include contraceptive coverage and how separate conduit arrangements operate

Proposed conditions under which a religious organization's group health plan need not include contraceptive coverage and how separate contraceptive coverage is to be provided:

Written notice/self‑certification: The religious organization must provide written notice to the issuer/TPA (or otherwise self‑certify) that it is a religious organization and will not act as the designated plan administrator or claims administrator with respect to contraceptive benefits.

Insured plans — issuer obligations: For insured group health plans, the issuer must offer group coverage that excludes contraceptive services and must separately provide contraceptive‑only coverage to participants and beneficiaries without charging the religious organization or imposing cost sharing; the issuer must notify participants and beneficiaries of availability in accordance with guidance.

Self‑insured plans — TPA/independent entity obligations: For self‑insured plans, the employer must notify TPAs; designated TPAs or independent entities must have authority and control over funds to pay contraceptive benefits, authority to act as claims and plan administrator for those benefits, access to necessary participant information, and must provide or arrange such coverage and notify participants.

Permitted funding/arrangement options (proposed examples)

Issuer and Independent Entity Requirements

Documentation Required

Self-certification required

Issuers and other independent entities (including TPAs) must allow a religious organization’s authorized representative to self-certify that the organization qualifies for the accommodation. The self-certification puts the independent entity on notice that the organization has invoked the accommodation and triggers the independent entity’s obligation to provide separate contraceptive coverage to participants and beneficiaries without cost sharing or premium charge. The self-certification must be made available for examination upon request.

Self-certification must be completed by an individual authorized by the religious organization.
Independent entity’s duty to provide separate contraceptive coverage is triggered upon receipt of self-certification.
Self-certification must be retained and made available for examination.

Note

Independent-entity notice and operational responsibilities

After receiving a valid self-certification, the independent entity (issuer, TPA, or other designated independent entity) must notify plan participants and beneficiaries of the availability of separate contraceptive coverage and must provide that coverage automatically (for example, without an application or separate enrollment) and without cost sharing or premium charge to participants and beneficiaries. The independent entity must also protect beneficiary privacy with respect to use of contraceptive services. For insured plans, issuers must exclude contraceptive coverage from the insured plan and instead offer separate contraceptive coverage to participants and beneficiaries; for self-insured plans, a TPA or other independent entity must assume equivalent responsibilities.

Notification to participants and beneficiaries that separate contraceptive coverage is available.
Automatic provision of coverage (no application/enrollment required).
No premium charge or cost sharing for the separate contraceptive coverage.
Privacy protections for participants and beneficiaries who use contraceptive services.
For insured plans: issuer must exclude contraceptive coverage from the plan and provide separate coverage.
For self-insured plans: TPA or other independent entity must assume responsibility to provide and administer separate contraceptive coverage.

Key Definitions

Accommodation — definition and explanation

DefinitionAn arrangement under which contraceptive coverage is provided without cost sharing to participants and beneficiaries covered under a plan independent of the objecting religious organization, effectively exempting the religious organization from the contraceptive coverage requirement.

PurposeEnsure participants receive required contraceptive services without charge while protecting religious organizations from having to contract, arrange, or pay for that coverage.

ApplicabilityUsed in proposed regulations to describe the mechanism for insured group plans, student health insurance plans, and options for self-insured plans where an independent entity assumes responsibility.

Religious organization — definition and scope

DefinitionThe class of organizations that would qualify for the accommodation; Departments seek comment on specific definitional approaches (e.g., state law definitions, section 414(e)/3(33) church-plan definitions, inclusion/exclusion of for-profit religious employers).

Examples consideredNon-exempt, non-profit religious organizations and non-profit institutions of higher education that arrange student health insurance plans and previously qualified for the temporary enforcement safe harbor.

Open questionsWhether organizations that provide some, but not all, FDA‑approved contraceptives consistent with their beliefs should be included; Departments request comment on scope and criteria.

Independent entity — definition and role

DefinitionAn issuer, third-party administrator, or other provider of contraceptive coverage that is not a religious organization and would assume responsibility for providing contraceptive coverage under the accommodation.

Key responsibilitiesNotify plan participants and beneficiaries of availability, provide coverage automatically (no application/enrollment), and protect the privacy of users of contraceptive services.

Context of useApplies to both insured coverage (issuer assumes responsibility) and self-insured plans (TPA or other independent entity assumes responsibility).

Student health insurance coverage — definition

DefinitionIndividual-market health insurance coverage offered to students and their dependents under a written agreement between an institution of higher education and an issuer.

Treatment under accommodationFor student health insurance plans arranged by qualifying non-profit religious institutions, the issuer would provide enrollees separate contraceptive coverage without cost sharing and without charging the institution.

Relation to safe harborTemporary enforcement safe harbor extended on comparable terms to student health insurance plans for plan years beginning on or after Aug 1, 2012 and before Aug 1, 2013; accommodation treatment proposed after the transition period.

Third-party administrator (TPA) — definition and designation

DefinitionAn entity contracted by a self-insured plan to provide administrative services (e.g., network contracting, managed care services, payment of claims) that may be designated to provide or arrange contraceptive coverage and act as plan administrator for those benefits when the sponsor self-certifies objection.

Designation criteriaTPAs must have authority and control over funds to pay benefits, act as claims and plan administrator, and have access to information necessary to communicate with participants and beneficiaries for contraceptive benefits.

Regulatory effectDepartments consider regulations treating a religious organization's notice to a TPA as an instrument that designates the TPA as plan administrator under ERISA for contraceptive benefits processed in its normal course of business.

Independent entity (alternate) — issuer, TPA, or other

DefinitionAn entity separate from the religious organization (an issuer for insured plans or a TPA/other for self-insured plans) responsible for notifying participants and beneficiaries and providing contraceptive coverage without cost sharing under the accommodation.

FunctionsAssume responsibility for provision/administration of contraceptive benefits, notify participants, provide coverage automatically, and protect beneficiary privacy.

Contracting noteThere is no obligation for a TPA to accept designation if it objects to the terms; Departments propose criteria and regulatory language to effect designation when accepted.

OpenPayer

Accommodation for contraceptive coverage for religious organizations

Accommodation Coverage Criteria

Contraceptive Methods Required

Issuer and Independent Entity Requirements

Key Definitions