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The U.S. Department of Health & Human Services (HHS) and the Departments of Labor and the Treasury (Departments) have proposed a rule that aims to expand access to birth control coverage under the Affordable Care Act (ACA), which requires most group health plans to cover such services with no out-of-pocket cost. According to a press release from the Centers for Medicare & Medicaid Services, the proposed rule stems from efforts by the Biden-Harris Administration to expand access to no-cost birth control.
The ACA has long required non-grandfathered health plans to include women’s preventive services, including birth control and contraceptive counseling, at no cost. But in 2018, final regulations expanded exceptions to this coverage based on religious beliefs and moral convictions. This expansion allowed a number of private health plans and insurers to exclude contraceptive services altogether. The 2018 regulations did provide for an optional accommodation whereby an objecting employer could opt out of providing these services but still ensure those enrolled in their plans could access such services at no charge.
Under the proposed rule, individuals who desire contraceptive services but are enrolled in plans offered by rejecting entities will be able to seek care from any willing provider or facility at no cost. The Departments state that this new pathway – referred to as an individual contraceptive arrangement – will permit women and covered dependents to get birth control services free of charge even where their insurer or plan has a religious objection and has not elected an optional accommodation under prior final regulations.
The new rule will eliminate the moral exemption rule and will allow a provider or facility that provides contraceptive coverage in accordance with the individual contraceptive arrangement to be reimbursed through an arrangement with an issuer on a federally facilitated exchange or state-based exchange.
The proposed rule is in keeping with the Biden-Harris Administration’s stated commitment to ensuring ongoing access to reproductive health services. This is one of the efforts to protect reproductive rights in the wake of last year’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization.
The proposed rule is subject to a 60-day public comment period, which is sure to generate numerous comments. The Departments will generate a final rule that would likely not be effective until plan years starting on or after January 1, 2024, at the earliest.
This information has been prepared for UBA by Fisher & Phillips LLP. It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.