The Departments of the Treasury, Health and Human Services, and Labor have issued proposed and interim final contraceptive mandate rules that are effective on October 6, 2017. The new regulations exempt objecting nongovernment employers from the general requirement to provide contraceptive coverage at no cost to participants in their group health plans as a part of the preventive services mandate under the Patient Protection and Affordable Care Act (ACA)

Contraception Mandate

The new rules provide that any nongovernment employer that has religious or moral objections to providing coverage for some or all forms of birth control can simply not provide the coverage. These rules also apply to colleges and universities providing student health insurance coverage. Although there has been a limited accommodation for employers that have a religious objection, the exemption on the basis of a moral objection is entirely new.

Religious Exemption

The religious exemption is open to any nongovernment employer, including both nonprofit and for-profit employers. The same holds true for the moral exemption, except the religious exemption is available for publicly traded employers, but the moral objection is not. The government expects corporations to express their objections through the normal state law rules of corporate governance.

Employers have the option of using a modified version of the Obama-era religious accommodation by allowing insurers to independently provide coverage, although they are not required to offer any accommodation at all. Unlike the religious employer accommodation under the Obama-era rules, an objecting employer under the new rules need not file anything with the government.

Employers are free to pick and choose among contraceptives if they do decided to offer contraceptive coverage. For example, employers may exclude IUDs while covering birth control pills.

Objecting Health Insurers

The new regulations extend the exemption for objecting employers to objecting health insurance issuers. The thinking is that this change will leave room in the health insurance market for issuers that are inclined to offer products that do not include coverage for contraceptive items and services to plan sponsors who also hold such an objection.

The new rules contain an exemption for individuals under which a health insurance issuer may offer a separate benefit package option to any individual who objects to coverage or payments for some or all contraceptive services based on the individual’s sincerely held religious beliefs or moral convictions. However, this “individual exemption” cannot be used to force a plan (or its sponsor) or an issuer to provide coverage omitting contraception, or, with respect to health insurance coverage, to prevent the application of state law that requires coverage of such contraceptives or sterilization.

Comments Requested

Written comments on these interim final rules are invited and must be received by December 5, 2017. Comments may be submitted electronically to Instructions for submitting written comments via mail are available in the documents. Any comment that is submitted will be shared with the Department of Labor and the Department of the Treasury, and will also be made available to the public. All comments may be posted on the internet and can be retrieved by most Internet search engines. No deletions, modifications, or redactions will be made to the comments received, as they are public records. Comments may be submitted anonymously.