November 9, 2018

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

On November 7th, 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 15th, 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 15th and will take effect sixty days after publication.

Table 1

Exemptions and Accommodation for Coverage of Certain Preventive Services Under the ACA
Rule for Religious Beliefs
Rule for Moral Convictions
(CMS-9940-F2)
(CMS-9925-F)
Exempt from contraception coverage mandate if there is an objection to services based on “sincerely held religious beliefs” and therefore no longer required to provide such coverage.
Voluntary accommodation that provides similar protections as offered in the religious rule.
“Moral convictions” are those: (1) “that a person deeply and sincerely holds”; (2) “that are purely ethical or moral” in source and content; (3) “but that nevertheless impose . . . a ‘duty'”; and (4) that “certainly occupy . . . a place parallel to that filled by . . . God” in a traditionally religious person, such that one could say the “beliefs function as a religion.”
Rule maintains availability of the accommodation but makes optional at entity election. Exempt entity could elect to provide contraceptive coverage (to some or all methods of contraception offered).
Rule not extended at this time to publicly traded businesses or government entities.
Differs from interim rule in technical ways to enhance clarity
Differs from interim rule in technical ways to enhance clarity
Includes higher education institutions, insurance issuers (to the extent they provide a plan to exempt entities) and individuals whose employers and issuers offer them a plan compliant with their beliefs
Includes nonprofit organizations and closely held businesses, as well as institutions of higher education, health insurance issuers serving exempt entities, and individuals. Also available to entities with moral convictions against providing contraceptive services in their health plans.

 

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.

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