Tri-agency interim final rules issued Oct. 6 greatly expand the availability of religious exemptions from the Affordable Care Act's (ACA) preventive services contraceptive coverage mandate for nongrandfathered plans. Additionally, a separate interim final rule says that certain entities and individuals can now claim exemption because of moral convictions. The interim rules — issued by the Departments of Health and Human Services, Treasury, and Labor — are effective immediately.
All nongovernmental employers with sincerely held religious objections to contraceptive coverage now can elect to be exempt from the requirement, or can use an optional accommodation process under which the issuer or third-party administrator provides contraceptive coverage. Unlike prior guidance, the new rules cover all nongovernmental nonprofit and for-profit employers, including publicly traded companies. Exemptions based on moral objections to contraception will only be available to nonprofit employers and for-profit employers with no publicly traded ownership interest.
Employers claiming the exemptions don't have to provide a certification or any specific notice, but may rely instead on summary plan descriptions and summaries of material reductions to explain what services are or are not covered. In addition, the exemptions are available to the extent of the covered employer's objections. For example, if the employer has religious objections to morning-after pills but not to other forms of contraception, then the exemption would only apply to morning after pills. The exemptions are also available to institutions of higher learning for their student health plans.
While the exemptions could be claimed immediately — or for 2018 coverage — employers sponsoring nongrandfathered plans with religious or moral objections to contraceptive coverage may wish to await further developments. A number of groups and the attorneys general of some states have already announced plans to challenge the new rules in court.
Of course, for most employers, this change won’t be a cause for action. In 2010, prior to the ACA mandate, a Mercer survey of 779 employers found that contraceptives were covered by 88% of respondents, with little variation in prevalence by employer size.