On August 15, 2012, the Department of Health and Human Services issued new guidance on the Patient Protection and Affordable Care Act’s (PPACA’s) requirement that non-grandfathered group health plans must offer contraceptive coverage without cost-sharing. The new guidance, which was originally issued on February 10, 2012, explains the requirements for the temporary enforcement safe harbor that is available to non-grandfathered plans established and maintained by non-profit organizations with religious objections to contraceptive coverage.
The safe harbor expands the exemption from offering contraceptive coverage. Originally, the exemption was limited to churches, church auxiliaries and conventions or associations of churches. Under the safe harbor announced last week, the exemption is available for the next plan year to non-grandfathered plans established or maintained by non-profit organizations whose plans have consistently not covered all or some of the contraceptive services for religious reasons from February 10, 2012 onward.
By reissuing the guidance, Centers for Medicare and Medicaid (CMS) is not changing the February 10, 2012 policy. Instead, CMS is clarifying three points:
- The safe harbor is available to non-profit organizations with religious objections to some but not all contraceptive coverage;
- Plans that took some action to try to exclude or limit contraceptive coverage that was not successful as of February 10, 2012, are not precluded from eligibility for the safe harbor; and
- The safe harbor may be used by non-profit organizations that are uncertain whether they qualify for the religious employer exemption.
Temporary Safe Harbor
In order to qualify for the temporary safe harbor, the employer must meet all of the following criteria:
- The employer must be organized and operated as a non-profit entity;
- From February 10, 2012 onward, the employer’s plan must have consistently not provided all or some of the contraceptive coverage required by PPACA because of the religious beliefs of the employer;
- The plan (or another entity on behalf of the plan, such as a health insurer or a Third Party Administrator (TPA)) must provide to plan participants the notice described below, which states 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; and
- The employer must self-certify that it satisfies the above criteria and must document its self-certification.
The temporary safe harbor provides an additional year (until the first plan year beginning on or after August 1, 2013) before these plans will be required to offer contraceptive services. The Department of Labor and the Treasury Department will not take any enforcement action against an employer that complies with the temporary safe harbor.
2. Required Notice
A notice is required to be included in any application materials distributed during plan enrollment (or re-enrollment) for a plan year that begins on or after August 1, 2012. For example, for a calendar year plan with an open enrollment period beginning November 1, the notice must be in any application materials provided to participants on or after November 1, 2012.
That notice must read as follows:
NOTICE TO PLAN PARTICIPANTS
The organization that sponsors your group health plan has certified that it qualifies for a temporary enforcement safe harbor with respect to the Federal requirement to cover contraceptive services without cost-sharing. During this one-year period, coverage under your group health plan will not include coverage of contraceptive services/some contraceptive services.
An employer that excludes some, but not all contraceptive coverage must use the term “some” at the end of the notice.
The notice must be provided by the plan, although the plan may ask a health insurer or a TPA to be responsible for providing the notice on its behalf.
3. Required Certification
A person who is authorized to make certifications on behalf of the employer must sign a written certification. The certification must be available for examination by the first day of the plan year to which the enforcement safe harbor applies. Employers that have already completed the certification or issued the notice from the February 10, 2012 bulletin are not required to recertify or reissue the notice.
HHS issued the certification form to be used on the last page (page seven) of its August 15, 2012 Guidance.