[Federal Register Volume 79, Number 166 (Wednesday, August 27, 2014)]
[Rules and Regulations]
[Pages 51092-51101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20252]
[[Page 51092]]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 54
[TD-9690]
RIN 1545-BM38
DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Parts 2510 and 2590
RIN 1210-AB67
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Parts 147
[CMS-9939-IFC]
RIN 0938-AR42
Coverage of Certain Preventive Services Under the Affordable Care
Act
AGENCY: Internal Revenue Service, Department of the Treasury; Employee
Benefits Security Administration, Department of Labor; Centers for
Medicare & Medicaid Services, Department of Health and Human Services.
ACTION: Interim final rules.
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SUMMARY: This document contains interim final regulations regarding
coverage of certain preventive services under section 2713 of the
Public Health Service Act (PHS Act), added by the Patient Protection
and Affordable Care Act, as amended, and incorporated into the Employee
Retirement Income Security Act of 1974 and the Internal Revenue Code.
Section 2713 of the PHS Act requires coverage without cost sharing of
certain preventive health services by non-grandfathered group health
plans and health insurance coverage. Among these services are women's
preventive health services, as specified in guidelines supported by the
Health Resources and Services Administration (HRSA). As authorized by
the current regulations, and consistent with the HRSA Guidelines, group
health plans established or maintained by certain religious employers
(and group health insurance coverage provided in connection with such
plans) are exempt from the otherwise applicable requirement to cover
certain contraceptive services. Additionally, under current
regulations, accommodations are available with respect to the
contraceptive coverage requirement for group health plans established
or maintained by eligible organizations (and group health insurance
coverage provided in connection with such plans), and student health
insurance coverage arranged by eligible organizations that are
institutions of higher education, that effectively exempt them from
this requirement. The regulations establish a mechanism for separately
furnishing payments for contraceptive services on behalf of
participants and beneficiaries of the group health plans of eligible
organizations that avail themselves of an accommodation, and enrollees
and dependents of student health coverage arranged by eligible
organizations that are institutions of higher education that avail
themselves of an accommodation. These interim final regulations augment
current regulations in light of the Supreme Court's interim order in
connection with an application for an injunction in Wheaton College v.
Burwell, 134 S. Ct. 2806 (2014) (Wheaton order). These interim final
regulations provide an alternative process that an eligible
organization may use to provide notice of its religious objections to
providing contraceptive coverage, while preserving participants' and
beneficiaries' (and enrollees' and dependents') access to coverage for
the full range of Food and Drug Administration (FDA)-approved
contraceptives, as prescribed by a health care provider, without cost
sharing.
DATES: Effective date: These interim final regulations are effective on
August 27, 2014.
Comments: Written comments on these interim final regulations are
invited and must be received by October 27, 2014.
ADDRESSES: Written comments may be submitted to the Department of Labor
as specified below. Any comment that is submitted will be shared with
the Department of Health and Human Services and the Department of the
Treasury, and will also be made available to the public. Warning: Do
not include any personally identifiable information (such as name,
address, or other contact information) or confidential business
information that you do not want publicly disclosed. 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.
Comments, identified by ``Preventive Services,'' may be submitted
by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail or Hand Delivery: Office of Health Plan Standards and
Compliance Assistance, Employee Benefits Security Administration, Room
N-5653, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210, Attention: Preventive Services.
Comments received will be posted without change to
www.regulations.gov and available for public inspection at the Public
Disclosure Room, N-1513, Employee Benefits Security Administration, 200
Constitution Avenue NW., Washington, DC 20210, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT: David Mlawsky, Centers for Medicare &
Medicaid Services (CMS), Department of Health and Human Services (HHS),
at (410) 786-1565; Amy Turner or Beth Baum, Employee Benefits Security
Administration (EBSA), Department of Labor, at (202) 693-8335; Karen
Levin, Internal Revenue Service (IRS), Department of the Treasury, at
(202) 927-9639.
Customer Service Information: Individuals interested in obtaining
information from the Department of Labor concerning employment-based
health coverage laws may call the EBSA Toll-Free Hotline at 1-866-444-
EBSA (3272) or visit the Department of Labor's Web site (www.dol.gov/ebsa). Information from HHS on private health insurance coverage can be
found on CMS's Web site (www.cms.gov/cciio), and information on health
care reform can be found at www.HealthCare.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Patient Protection and Affordable Care Act (Pub. L. 111-148)
was enacted on March 23, 2010. The Health Care and Education
Reconciliation Act of 2010 (Pub. L. 111-152) was enacted on March 30,
2010. These statutes are collectively known as the Affordable Care Act.
The Affordable Care Act reorganizes, amends, and adds to the provisions
of part A of title XXVII of the Public Health Service Act (PHS Act)
relating to group health plans and health insurance issuers in the
group and individual markets. The Affordable Care Act adds section
715(a)(1) to the Employee Retirement Income Security Act of 1974
(ERISA) and section 9815(a)(1) to the Internal Revenue Code (Code) to
incorporate the provisions of part A of
[[Page 51093]]
title XXVII of the PHS Act into ERISA and the Code, and to make them
applicable to group health plans and health insurance issuers providing
health insurance coverage in connection with group health plans. The
sections of the PHS Act incorporated into ERISA and the Code are
sections 2701 through 2728.
Section 2713 of the PHS Act, as added by the Affordable Care Act
and incorporated into ERISA and the Code, requires that non-
grandfathered group health plans and health insurance issuers offering
non-grandfathered group or individual health insurance coverage provide
coverage of certain specified preventive services without cost sharing,
including under paragraph (a)(4), benefits for certain women's
preventive health services as provided for in comprehensive guidelines
supported by the Health Resources and Services Administration (HRSA).
On August 1, 2011, HRSA adopted and released guidelines for women's
preventive health services (HRSA Guidelines) based on recommendations
of the independent Institute of Medicine. As relevant here, the HRSA
Guidelines include all Food and Drug Administration (FDA)-approved
contraceptives, sterilization procedures, and patient education and
counseling for women with reproductive capacity, as prescribed by a
health care provider (collectively, contraceptive services).\1\ Except
as discussed later in this section, non-grandfathered group health
plans and health insurance coverage are required to provide coverage
consistent with the HRSA Guidelines without cost sharing for plan years
(or, in the individual market, policy years) beginning on or after
August 1, 2012.\2\
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\1\ The HRSA Guidelines exclude services relating to a man's
reproductive capacity, such as vasectomies and condoms.
\2\ Interim final regulations published by the Departments on
July 19, 2010, generally provide that plans and issuers must cover a
newly recommended preventive service starting with the first plan
year (or, in the individual market, policy year) that begins on or
after the date that is one year after the date on which the new
recommendation is issued. 26 CFR 54.9815-2713T(b)(1); 29 CFR
2590.715-2713(b)(1); 45 CFR 147.130(b)(1).
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Interim final regulations implementing section 2713 of the PHS Act
were published on July 19, 2010 (75 FR 41726) (2010 interim final
regulations). On August 1, 2011, the Departments of Health and Human
Services (HHS), Labor, and the Treasury (collectively, the Departments)
amended the 2010 interim final regulations to provide HRSA with
authority to exempt group health plans established or maintained by
certain religious employers (and group health insurance coverage
provided in connection with such plans) from the requirement to cover
contraceptive services consistent with the HRSA Guidelines (76 FR
46621) (2011 amended interim final regulations).\3\ On the same date,
HRSA exercised this authority in the HRSA Guidelines to exempt group
health plans established or maintained by these religious employers
(and group health insurance coverage provided in connection with such
plans) from the HRSA Guidelines with respect to contraceptive
services.\4\ The 2011 amended interim final regulations specified that,
for purposes of this exemption, a religious employer was one that: (1)
Has the inculcation of religious values as its purpose; (2) primarily
employs persons who share its religious tenets; (3) primarily serves
persons who share its religious tenets; and (4) is a nonprofit
organization described in section 6033(a)(1) and (a)(3)(A)(i) or (iii)
of the Code. Section 6033(a)(3)(A)(i) and (iii) of the Code refers to
churches, their integrated auxiliaries, and conventions or associations
of churches, as well as to the exclusively religious activities of any
religious order. Final regulations issued on February 10, 2012, adopted
the definition of religious employer in the 2011 amended interim final
regulations without modification (2012 final regulations).\5\
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\3\ The 2011 amended interim final regulations were issued and
effective on August 1, 2011, and published in the Federal Register
on August 3, 2011 (76 FR 46621).
\4\ HRSA subsequently amended the HRSA Guidelines to reflect the
simplified definition of ``religious employer'' contained in the
July 2013 final regulations, 78 FR 39870 (July 2, 2013) (discussed
below), effective August 1, 2013.
\5\ The 2012 final regulations were published in the Federal
Register on February 15, 2012 (77 FR 8725).
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Contemporaneous with the issuance of the 2012 final regulations,
HHS, with the agreement of the Departments of Labor and the Treasury,
issued guidance establishing a temporary safe harbor from enforcement
of the contraceptive coverage requirement by the Departments for group
health plans established or maintained by certain nonprofit
organizations with religious objections to contraceptive coverage (and
group health insurance coverage provided in connection with such
plans).\6\ The guidance provided that the temporary enforcement safe
harbor would remain in effect until the first plan year beginning on or
after August 1, 2013. At the same time, the Departments committed to
rulemaking to achieve the goals of providing coverage of recommended
preventive services, including contraceptive services, without cost
sharing, while simultaneously ensuring that certain additional
nonprofit organizations with religious objections to contraceptive
coverage would not have to contract, arrange, pay, or refer for such
coverage.
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\6\ Guidance on the Temporary Enforcement Safe Harbor for
Certain Employers, Group Health Plans, and Group Health Insurance
Issuers with Respect to the Requirement to Cover Contraceptive
Services Without Cost Sharing Under Section 2713 of the Public
Health Service Act, Section 715(a)(1) of the Employee Retirement
Income Security Act, and Section 9815(a)(1) of the Internal Revenue
Code; originally issued on February 10, 2012, and reissued on August
15, 2012 and June 28, 2013; available at: http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/preventive-services-guidance-6-28-2013.pdf. The guidance clarified, among other things,
that plans that took some action before February 10, 2012, to try,
without success, to exclude or limit contraceptive coverage were not
precluded from eligibility for the safe harbor. The temporary
enforcement safe harbor was also available to student health
insurance coverage arranged by nonprofit institutions of higher
education with religious objections to contraceptive coverage that
met the conditions set forth in the guidance. See Student Health
Insurance Coverage, 77 FR 16457 (Mar. 21, 2012).
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On March 21, 2012, the Departments published an advance notice of
proposed rulemaking (ANPRM) that described and solicited comments on
possible approaches to achieve these goals (77 FR 16501).
On February 6, 2013, following review of the comments on the ANPRM,
the Departments published proposed regulations at 78 FR 8456 (proposed
regulations). The regulations proposed to simplify and clarify the
definition of ``religious employer'' for purposes of the religious
employer exemption. The regulations also proposed accommodations for
group health plans established or maintained or arranged by certain
nonprofit religious organizations with religious objections to
contraceptive coverage (and group health insurance coverage provided in
connection with such plans). These organizations were referred to as
``eligible organizations.''
The regulations proposed that, in the case of an insured group
health plan established or maintained by an eligible organization, the
health insurance issuer providing group health insurance coverage in
connection with the plan would be required to assume sole
responsibility for providing contraceptive coverage to plan
participants and beneficiaries without cost sharing, premium, fee, or
other charge to plan participants or beneficiaries or to the eligible
organization or its plan. The Departments proposed a comparable
accommodation with respect to student health insurance coverage
arranged by
[[Page 51094]]
eligible organizations that are institutions of higher education.
In the case of a self-insured group health plan established or
maintained by an eligible organization, the proposed regulations
presented potential approaches under which the third party
administrator of the plan would provide or arrange for a third party to
provide contraceptive coverage to plan participants and beneficiaries
without cost sharing, premium, fee, or other charge to plan
participants or beneficiaries or to the eligible organization or its
plan. An issuer (or its affiliate) would be able to offset the costs
incurred by the third party administrator and the issuer in the course
of arranging and providing such coverage by claiming an adjustment in
the Federally-facilitated Exchange (FFE) user fee.
The Departments received over 400,000 comments (many of them
standardized form letters) in response to the proposed regulations.
After consideration of the comments, the Departments published final
regulations on July 2, 2013 at 78 FR 39870 (July 2013 final
regulations). The July 2013 final regulations simplified and clarified
the definition of religious employer for purposes of the religious
employer exemption and established accommodations for health coverage
established or maintained or arranged by eligible organizations. A
contemporaneously re-issued HHS guidance document extended the
temporary safe harbor from enforcement of the contraceptive coverage
requirement by the Departments to encompass plan years beginning on or
after August 1, 2013, and before January 1, 2014. This guidance
included a form to be used by an organization during this temporary
period to self-certify that its plan qualified for the temporary
enforcement safe harbor. In addition, HHS and the Department of Labor
(DOL) issued a self-certification form, EBSA Form 700, to be executed
by an organization seeking to be treated as an eligible organization
for purposes of an accommodation under the July 2013 final regulations.
This self-certification form was provided for use with the
accommodation under the July 2013 final regulations, after the
expiration of the temporary enforcement safe harbor (that is, for plan
years beginning on or after January 1, 2014).
On June 30, 2014, the Supreme Court ruled in the case of Burwell v.
Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), that, under the
Religious Freedom Restoration Act of 1993 (RFRA), the requirement to
provide contraceptive coverage could not be applied to the closely held
for-profit corporations before the Court because their owners had
religious objections to providing such coverage, and because the
Government's goal of guaranteeing coverage for contraceptive methods
without cost sharing could be achieved in a less restrictive manner by
offering such closely held for-profit entities the accommodation the
Government already provided to religious nonprofit organizations with
religious objections to contraceptive coverage. After describing this
accommodation, the Court concluded that the accommodation ``does not
impinge on the plaintiffs' religious belief that providing insurance
coverage for the contraceptives at issue here violates their religion,
and it serves HHS' stated interests equally well.'' 134 S. Ct. at 2782.
The Departments are publishing elsewhere in this edition of the Federal
Register a notice of proposed rulemaking (NPRM) that proposes possible
amendments to the definition of the term ``eligible organization'' to
include closely held for-profit entities with religious objections to
contraceptive coverage, in light of the Hobby Lobby decision.
On July 3, 2014, the Supreme Court issued an interim order in
connection with an application for an injunction pending appeal in
Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), in which the
plaintiff challenged under RFRA the requirement in the July 2013 final
regulations that an eligible organization invoking the accommodation
send EBSA Form 700 to the insurance issuer or third party
administrator. The Court's order stated that, ``[i]f the [plaintiff]
informs the Secretary of Health and Human Services in writing that it
is a nonprofit organization that holds itself out as religious and has
religious objections to providing coverage for contraceptive services,
the [Departments of Labor, Health and Human Services, and the Treasury]
are enjoined from enforcing against the [plaintiff]'' certain
provisions of the Affordable Care Act and related regulations requiring
coverage without cost sharing of certain contraceptive services
``pending final disposition of appellate review.'' 134 S.Ct. at 2807.
The order stated that Wheaton College need not use EBSA Form 700 or
send a copy of the executed form to its health insurance issuers or
third party administrators to meet the condition for this injunctive
relief. Id. The Court also stated that its interim order neither
affected ``the ability of the [plaintiff's] employees and students to
obtain, without cost, the full range of FDA approved contraceptives,''
nor precluded the Government from relying on the notice by the
plaintiff ``to facilitate the provision of full contraceptive coverage
under the Act.'' Id. The Court's order further stated that it ``should
not be construed as an expression of the Court's views on the merits''
of the plaintiff's challenge to the accommodations. Id.
The Departments are issuing these interim final regulations in
light of the Supreme Court's interim order in Wheaton concerning notice
to the Federal government that an eligible organization has a religious
objection to providing contraceptive coverage, as an alternative to the
EBSA Form 700 method of self-certification, and to preserve
participants' and beneficiaries' (and, in the case of student health
insurance coverage, enrollees' and dependents') access to coverage for
the full range of FDA-approved contraceptives, as prescribed by a
health care provider, without cost sharing.
II. Overview of the Interim Final Regulations
These interim final regulations amend the Departments' July 2013
final regulations to provide an alternative process for the sponsor of
a group health plan or an institution of higher education to provide
notice of its religious objection to coverage of all or a subset of
contraceptive services, as an alternative to the EBSA Form 700 method
of self-certification. These interim final regulations continue to
allow eligible organizations to use EBSA Form 700, as set forth in the
July 2013 final regulations and guidance.\7\
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\7\ The EBSA Form 700 is available at: http://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf.
When using the EBSA 700, the self-certification form is provided
directly to each third party administrator or issuer of the plan.
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The alternative process permitted by these interim final
regulations is consistent with the Wheaton order. It provides that an
eligible organization may notify HHS in writing of its religious
objection to coverage of all or a subset of contraceptive services. The
notice must include the name of the eligible organization and the basis
on which it qualifies for an accommodation; its objection based on
sincerely held religious beliefs to providing coverage of some or all
contraceptive services (including an identification of the subset of
contraceptive services to which coverage the eligible organization
objects, if applicable); the plan name and type (i.e., whether it is a
student health insurance plan within the
[[Page 51095]]
meaning of 45 CFR 147.145(a) or a church plan within the meaning of
ERISA section 3(33)); and the name and contact information for any of
the plan's third party administrators and health insurance issuers.\8\
A model notice to HHS that eligible organizations may, but are not
required to, use is available at: http://www.cms.gov/cciio/resources/Regulations-and-Guidance/index.html#Prevention. If there is a change in
any of the information required to be included in the notice, the
organization must provide updated information to HHS.
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\8\ Church plans are exempt from ERISA pursuant to ERISA section
4(b)(2). As such, a third party administrator of a self-insured
church plan cannot become the plan administrator by operation of 29
CFR 2510.3-16, although such third party administrators may
voluntarily provide or arrange separate payments for contraceptive
services and seek reimbursement for associated expenses under the
process set forth in 45 CFR 156.50.
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As with the process established in the July 2013 final regulations,
nothing in this alternative notice process requires a government
assessment of the sincerity of the religious belief underlying the
eligible organization's objection. The notice to HHS, and any
subsequent updates, should be sent electronically to:
[email protected], or by regular mail to: Centers for Medicare &
Medicaid Services, Center for Consumer Information and Insurance
Oversight, 200 Independence Avenue SW., Washington, DC 20201, Room
739H. The content required for the notice represents the minimum
information necessary for the Departments to determine which entities
are covered by the accommodation, to administer the accommodation, and
to implement the policies in the July 2013 final regulations.
When an eligible organization that establishes or maintains or
arranges a self-insured plan subject to ERISA provides such a notice to
HHS, DOL (working with HHS) will send a separate notification to each
third party administrator of the ERISA plan. DOL's notification will
inform each third party administrator of the eligible organization's
religious objection to funding or administering some or all
contraceptive coverage and will designate the relevant third party
administrator(s) as plan administrator under section 3(16) of ERISA for
those contraceptive benefits that the third party administrator would
otherwise manage. The DOL notification will be an instrument under
which the plan is operated and shall supersede any earlier designation.
In establishing and implementing this alternative process, DOL is
exercising its broad rulemaking authority under Title I of ERISA, which
includes the ability to interpret and apply the definition of a plan
administrator under ERISA section 3(16)(A).
If an eligible organization that establishes or maintains an
insured health plan provides a notice to HHS under this alternative
process, HHS will send a separate notification to the plan's health
insurance issuer(s) informing the issuer(s) that HHS has received a
notice under Sec. 2590.715-2713A(c)(1) and describing the obligations
of the issuer(s) under Sec. 2590.715-2713A. Issuers remain responsible
for compliance with the statutory and regulatory requirement to provide
coverage for contraceptive services to participants and beneficiaries,
and to enrollees and dependents of student health plans,
notwithstanding that the policyholder is an eligible organization with
a religious objection to contraceptive coverage that will not have to
contract, arrange, pay, or refer for such coverage.
Other questions have arisen regarding the requirement to provide
coverage for contraceptive services without cost sharing and the
accommodations for eligible organizations. In what has been described
as the ``non-interference provision,'' the July 2013 final regulations
provided that eligible organizations that establish or maintain self-
insured group health plans ``must not, directly or indirectly seek to
interfere with a third party administrator's arrangements to provide or
arrange for separate payments for contraceptive services'' and ``must
not, directly or indirectly, seek to influence a third party
administrator's decision to make any such arrangements.'' 26 CFR
54.9815-2713A(b)(1)(iii); 29 CFR 2590.715-2713A(b)(1)(iii). The
Departments interpret the July 2013 final regulations solely as
prohibiting the use of bribery, threats, or other forms of economic
coercion in an attempt to prevent a third party administrator from
fulfilling its independent legal obligations to provide or arrange
separate payments for contraceptive services. Because such conduct is
generally unlawful and is prohibited under other state and federal
laws, and to reduce unnecessary confusion, these interim final
regulations delete the language prohibiting an eligible organization
from interfering with or seeking to influence a third party
administrator's decision or efforts to provide separate payments for
contraceptive services.
III. Interim Final Regulations and Request for Comments
Section 9833 of the Code, section 734 of ERISA, and section 2792 of
the PHS Act authorize the Secretaries of the Treasury, Labor, and HHS
(collectively, the Secretaries) to promulgate any interim final rules
that they determine are appropriate to carry out the provisions of
chapter 100 of the Code, part 7 of subtitle B of title I of ERISA, and
part A of title XXVII of the PHS Act, which include PHS Act sections
2701 through 2728 and the incorporation of those sections into ERISA
section 715 and Code section 9815.
In addition, under Section 553(b) of the Administrative Procedure
Act (APA) (5 U.S.C. 551 et seq.), a general notice of proposed
rulemaking is not required when an agency, for good cause, finds that
notice and public comment thereon are impracticable, unnecessary, or
contrary to the public interest. The provisions of the APA that
ordinarily require a notice of proposed rulemaking do not apply here
because of the specific authority granted by section 9833 of the Code,
section 734 of ERISA, and section 2792 of the PHS Act. However, even if
these provisions of the APA were applicable, the Secretaries have
determined that it would be impracticable and contrary to the public
interest to delay putting the provisions in these interim final
regulations in place until a full public notice and comment process is
completed.
As discussed earlier, the Departments are issuing these interim
final regulations in light of the Supreme Court's order in Wheaton
College concerning notice to the Federal government that an eligible
organization has a religious objection to providing contraceptive
coverage, as an alternative to the EBSA Form 700, and to preserve
participants' and beneficiaries' (and, in the case of student health
insurance coverage, enrollees' and dependents') access to coverage for
the full range of FDA-approved contraceptive services, as prescribed by
a health care provider, without cost sharing. That order was issued and
was effective on July 3, 2014.
In order to provide other eligible organizations with an option
equivalent to the one the Supreme Court provided to Wheaton College on
an interim basis, regulations must be published and available to the
public as soon as possible. Delaying the availability of the
alternative process in order to allow for a full notice and comment
period would delay the ability of eligible organizations to avail
themselves of this alternative process and could delay women's access
to contraceptive
[[Page 51096]]
coverage without cost sharing, thereby compromising their access to
necessary contraceptive services. Issuing interim final regulations
provides the public with an opportunity to comment on whether these
regulations affording this alternative should be made permanent or
subject to modification without delaying the effective date of the
regulations.
For the foregoing reasons, the Departments have determined that it
would be impracticable and contrary to the public interest to engage in
full notice and comment rulemaking before putting these interim final
regulations into effect, and that it is in the public interest to
promulgate interim final regulations. For the same reasons, the
Departments have determined, consistent with section 553(d) of the APA
(5 U.S.C. 553(d)), that there is good cause to make these interim final
regulations effective immediately upon publication in the Federal
Register.
IV. Economic Impact and Paperwork Burden
A. Executive Orders 12866 and 13563--Department of Health and Human
Services and Department of Labor
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, and public
health and safety effects; distributive impacts; and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action that is likely to result in a
regulation: (1) Having an annual effect on the economy of $100 million
or more in any one year, or adversely and materially affecting a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or state, local, or tribal governments or
communities (also referred to as ``economically significant''); (2)
creating a serious inconsistency or otherwise interfering with an
action taken or planned by another agency; (3) materially altering the
budgetary impacts of entitlement grants, user fees, or loan programs or
the rights and obligations of recipients thereof; or (4) raising novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
A regulatory impact analysis must be prepared for major rules with
economically significant effects ($100 million or more in any one
year), and an ``economically significant'' regulatory action is subject
to review by the Office of Management and Budget (OMB). These interim
final regulations are not likely to have economic impacts of $100
million or more in any one year, and therefore do not meet the
definition of ``economically significant'' under Executive Order 12866.
1. Need for Regulatory Action
These interim final regulations amend the Departments' July 2013
final regulations to provide an alternative process for an eligible
organization to provide notice of its religious objection to coverage
of all or a subset of contraceptive services.
2. Anticipated Effects
The Departments expect that these interim final regulations will
not result in any additional burden on or costs to the affected
entities. These interim final regulations do not change the fundamental
ability of an eligible organization to exempt itself from contracting,
arranging, paying, or referring for contraceptive coverage. Instead,
the regulations merely provide alternative means for eligible
organizations to provide notice of their religious objection to
coverage of all, or a subset of, contraceptive services.
B. Special Analyses--Department of the Treasury
For purposes of the Department of the Treasury, it has been
determined that this rule is not a significant regulatory action as
defined in Executive Order 12866, as supplemented by Executive Order
13563. Therefore, a regulatory assessment is not required. It also has
been determined that section 553(b) of the APA does not apply to these
regulations. Pursuant to the Regulatory Flexibility Act (5 U.S.C.
chapter 6), it is hereby certified that this rule will not have a
significant economic impact on a substantial number of small entities
This certification is based on the fact that the temporary regulations
will not result in any additional costs to affected entities but will
provide an alternative means for eligible organizations to provide
notice of their religious objection to providing coverage of all, or a
subset of, contraceptive services. Pursuant to section 7805(f) of the
Code, these temporary regulations have been submitted to the Chief
Counsel for Advocacy of the Small Business Administration for comment
on their impact on small business.
C. Paperwork Reduction Act--Department of Health and Human Services
Under the Paperwork Reduction Act, an agency may not conduct or
sponsor, and an individual is not required to respond to, a collection
of information unless it displays a valid OMB control number. These
interim final regulations contain an information collection request
(ICR) that is subject to review by the Office of Management and Budget
(OMB). A description of these provisions is given in the following
section with an estimate of the annual burden. Average labor costs
(including fringe benefits) used to estimate the costs are calculated
using data available from the Bureau of Labor Statistics.
Each organization seeking to be treated as an eligible organization
under these interim final regulations must either use the EBSA Form 700
method of self-certification or provide notice to HHS of its religious
objection to coverage of all or a subset of contraceptive services.
Specifically, these interim final regulations continue to allow
eligible organizations to notify an issuer or third party administrator
using EBSA Form 700, as set forth in the July 2013 final regulations.
In addition, these interim final regulations permit an alternative
process, consistent with the Supreme Court's interim order in Wheaton
College, by which an eligible organization may notify HHS of its
religious objection to coverage of all or a subset of contraceptive
services. HHS is aware, based on litigation, that there are
approximately 122 eligible organizations that would now have the option
to provide notice to HHS, rather than provide a self-certification to
TPAs and/or issuers.
In order to complete this task, HHS assumes that clerical staff for
each eligible organization will gather and enter the necessary
information and send the self-certification to the issuer or third
party administrator as appropriate, or send the notice to HHS.\9\ HHS
assumes that a compensation and benefits manager and inside legal
counsel will review the self-certification or notice to HHS and a
senior executive would execute it. HHS estimates that an eligible
organization would spend approximately 45 minutes (30 minutes of
clerical labor at a cost of $30 per hour, 10 minutes for a compensation
[[Page 51097]]
and benefits manager at a cost of $102 per hour, 5 minutes for legal
counsel at a cost of $127, and 5 minutes by a senior executive at a
cost of $121) preparing and sending the self-certification or notice to
HHS and filing it to meet the recordkeeping requirement. Therefore, the
total annual burden for preparing and providing the information in the
self-certification or notice to HHS will require approximately 50
minutes for each eligible organization with an equivalent cost burden
of approximately $53 for a total hour burden of 102 hours with an
equivalent cost of $6,430.
---------------------------------------------------------------------------
\9\ For purposes of this analysis, the Department assumes that
the same amount of time will be required to prepare the self-
certification and the notice to HHS.
---------------------------------------------------------------------------
As the Department of Labor and the Department of Health and Human
Services share jurisdiction they are splitting the hour burden so each
will account for 51 burden hours. HHS estimates that each self-
certification or notice to HHS will require $0.49 in postage and $0.05
in materials cost (paper and ink) and the total postage and materials
cost for each self-certification or notice sent via mail will be $0.54.
For purposes of this analysis, HHS assumes that all self-certifications
or notices to HHS will be mailed. The total cost burden for the self-
certifications or notices to HHS is approximately $66.
As the Department of Labor and the Department of Health and Human
Services share jurisdiction they are splitting the cost burden so each
will account for $33 of the cost burden.
D. Paperwork Reduction Act--Department of Labor and Department of the
Treasury
Under the Paperwork Reduction Act, an agency may not conduct or
sponsor, and an individual is not required to respond to, a collection
of information unless it displays a valid OMB control number. In
accordance with the requirements of the PRA, the EBSA Form 700 ICR has
been approved by OMB under control number 1210-0150. These interim
final regulations amend the ICR by providing an alternative process
consistent with the Wheaton order, as discussed earlier in this
preamble. The Department of Labor submitted an ICR in order to obtain
OMB approval under the PRA for the regulatory revision. The request was
made under emergency clearance procedures specified in regulations at 5
CFR 1320.13. In response, OMB approved the ICR under control number
1210-0150 through January 31, 2015. A copy of the information
collection request may be obtained free of charge on the RegInfo.gov
Web site at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201408-1210-001.
This approval allows respondents temporarily to utilize the
additional flexibility these final regulations provide, while the
Department seeks public comment on the collection methods--including
their utility and burden. Contemporaneously with the publication of
these interim final regulations, the Department of Labor published a
notice elsewhere in today's issue of the Federal Register informing the
public of their intention to extend the OMB approval.
Consistent with the analysis in the HHS PRA section above the
Department expects that each of the estimated 122 organizations will
spend approximately 50 minutes in preparation time and incur $0.54
mailing cost to satisfy the requirements. The DOL information
collections in this rule are found in 29 CFR 2510.3-16 and 2590.715-
2713A and are summarized as follows:
Type of Review: Revised Collection.
Agency: DOL-EBSA.
Title: Coverage of Certain Preventive Services Under the Affordable
Care Act.
OMB Numbers: 1210-0150.
Affected Public: Private Sector--businesses or other for profits.
Total Respondents: 61 (combined with HHS total is 122).
Total Responses: 61 (combined with HHS total is 122).
Frequency of Response: On occasion.
Estimated Total Annual Burden Hours: 51 (combined with HHS total is
102 hours.
Estimated Total Annual Burden Cost: $33 (combined with HHS total is
66).
E. Regulatory Flexibility Act--Department of Labor and Department of
Health and Human Services
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes
certain requirements with respect to Federal rules that are subject to
the notice and comment requirements of section 553(b) of the APA (5
U.S.C. 551 et seq.) and that are likely to have a significant economic
impact on a substantial number of small entities. Under Section 553(b)
of the APA, a general notice of proposed rulemaking is not required
when an agency, for good cause, finds that notice and public comment
thereon are impracticable, unnecessary, or contrary to the public
interest. These interim final regulations are exempt from APA's prior
notice and comment requirement because the Departments made a good
cause finding that a general notice of proposed rulemaking is not
necessary earlier in this preamble. Therefore, the RFA does not apply
and the Departments are not required to either certify that the rule
would not have a significant economic impact on a substantial number of
small entities or conduct a regulatory flexibility analysis.
Nevertheless, the Departments carefully considered the likely
impact of the rule on small entities in connection with their
assessment under Executive Order 12866. The Departments do not expect
that these interim final regulations will have a significant economic
effect on a substantial number of small entities, because they will not
result in any additional costs to affected entities. Instead, the
regulations merely provide an alternative means for eligible
organizations to provide notice of their religious objection to
coverage of all, or a subset of, contraceptive services.
F. Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4), as well as Executive Order 12875, these interim final
regulations do not include any federal mandate that may result in
expenditures by state, local, or tribal governments, nor do they
include any federal mandates that may impose an annual burden of $100
million, adjusted for inflation, or more on the private sector.\10\
---------------------------------------------------------------------------
\10\ In 2014, that threshold level is approximately $141
million.
---------------------------------------------------------------------------
G. Federalism--Department of Health and Human Services and Department
of Labor
Executive Order 13132 outlines fundamental principles of
federalism, and requires the adherence to specific criteria by federal
agencies in the process of their formulation and implementation of
policies that have ``substantial direct effects'' on states, the
relationship between the federal government and states, or the
distribution of power and responsibilities among the various levels of
government. Federal agencies promulgating regulations that have these
federalism implications must consult with state and local officials,
and describe the extent of their consultation and the nature of the
concerns of state and local officials in the preamble to the
regulation.
These interim final regulations do not have any Federalism
implications, since they only provide an eligible organization with an
alternative process to provide notice of its religious objection to
coverage of all or a subset of contraceptive services.
V. Statutory Authority
The Department of the Treasury temporary regulations are adopted
[[Page 51098]]
pursuant to the authority contained in sections 7805 and 9833 of the
Code.
The Department of Labor regulations are adopted pursuant to the
authority contained in 29 U.S.C. 1002(16), 1027, 1059, 1135, 1161-1168,
1169, 1181-1183, 1181 note, 1185, 1185a, 1185b, 1185d, 1191, 1191a,
1191b, and 1191c; sec. 101(g), Public Law 104-191, 110 Stat. 1936; sec.
401(b), Public Law 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec.
512(d), Public Law 110-343, 122 Stat. 3881; sec. 1001, 1201, and
1562(e), Public Law 111-148, 124 Stat. 119, as amended by Public Law
111-152, 124 Stat. 1029; Secretary of Labor's Order 1-2011, 77 FR 1088
(Jan. 9, 2012).
The Department of Health and Human Services regulations are adopted
pursuant to the authority contained in sections 2701 through 2763,
2791, and 2792 of the PHS Act (42 U.S.C. 300gg through 300gg-63, 300gg-
91, and 300gg-92), as amended; and Title I of the Affordable Care Act,
sections 1301-1304, 1311-1312, 1321-1322, 1324, 1334, 1342-1343, 1401-
1402, and 1412, Pub. L. 111-148, 124 Stat. 119 (42 U.S.C. 18021-18024,
18031-18032, 18041-18042, 18044, 18054, 18061, 18063, 18071, 18082, 26
U.S.C. 36B, and 31 U.S.C. 9701).
List of Subjects
26 CFR Part 54
Excise taxes, Health care, Health insurance, Pensions, Reporting
and recordkeeping requirements.
29 CFR Part 2510
Employee benefit plans, Pensions.
29 CFR Part 2590
Continuation coverage, Disclosure, Employee benefit plans, Group
health plans, Health care, Health insurance, Medical child support,
Reporting and recordkeeping requirements.
45 CFR Part 147
Health care, Health insurance, Reporting and recordkeeping
requirements, State regulation of health insurance.
Signed this 20th day of August 2014.
John Dalrymple,
Deputy Commissioner for Services and Enforcement, Internal Revenue
Service.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax Policy).
Signed this 20th day of August 2014.
Phyllis C. Borzi,
Assistant Secretary, Employee Benefits Security Administration,
Department of Labor.
Dated: August 19, 2014.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
Approved: August 20, 2014.
Sylvia M. Burwell,
Secretary, Department of Health and Human Services.
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Accordingly, 26 CFR part 54 is amended as follows:
PART 54--PENSION EXCISE TAXES
0
Paragraph 1. The authority citation for part 54 continues to read, in
part, as follows:
Authority: 26 U.S.C. 7805. * * *
0
Par. 2. Section 54.9815-2713A is amended by revising paragraphs (b),
(c)(1), and (c)(2)(i) introductory text, and adding paragraph (f), to
read as follows:
Sec. 54.9815-2713A Accommodations in connection with coverage of
preventive health services.
* * * * *
(b) [Reserved]. For further guidance, see Sec. 54.9815-2713AT(b).
(c) Contraceptive coverage--insured group health plans. (1)
[Reserved]. For further guidance, see Sec. 54.9815-2713AT(c)(1).
(2) * * *
(i) [Reserved]. For further guidance, see Sec. 54.9815-
2713AT(c)(2)(i) introductory text.
* * * * *
(f) [Reserved]. For further guidance, see Sec. 54.9815-2713AT(f).
0
Par. 3. Section 54.9815-2713AT is added to read as follows:
Sec. 54.9815-2713AT Accommodations in connection with coverage of
preventive health services (temporary).
(a) [Reserved]. For further guidance, see Sec. 54.9815-2713A(a).
(b) Contraceptive coverage--self-insured group health plans. (1) A
group health plan established or maintained by an eligible organization
that provides benefits on a self-insured basis complies for one or more
plan years with any requirement under Sec. 54.9815-2713(a)(1)(iv) to
provide contraceptive coverage if all of the requirements of this
paragraph (b)(1) are satisfied:
(i) The eligible organization or its plan contracts with one or
more third party administrators.
(ii) The eligible organization provides either a copy of the self-
certification to each third party administrator or a notice to the
Secretary of Health and Human Services that it is an eligible
organization and of its religious objection to coverage of all or a
subset of contraceptive services.
(A) When a copy of the self-certification is provided directly to a
third party administrator, such self-certification must include notice
that obligations of the third party administrator are set forth in 29
CFR 2510.3-16 and this section and under Sec. 54.9815-2713A.
(B) When a notice is provided to the Secretary of Health and Human
Services, the notice must include the name of the eligible organization
and the basis on which it qualifies for an accommodation; its objection
based on sincerely held religious beliefs to coverage of some or all
contraceptive services (including an identification of the subset of
contraceptive services to which coverage the eligible organization
objects, if applicable); the plan name and type (i.e., whether it is a
student health insurance plan within the meaning of 45 CFR 147.145(a)
or a church plan within the meaning of ERISA section 3(33)); and the
name and contact information for any of the plan's third party
administrators and health insurance issuers. If there is a change in
any of the information required to be included in the notice, the
organization must provide updated information to the Secretary of
Health and Human Services. The Department of Labor (working with the
Department of Health and Human Services), will send a separate
notification to each of the plan's third party administrators informing
the third party administrator that the Secretary of Health and Human
Services has received a notice under paragraph (b)(1)(ii) of this
section and describing the obligations of the third party administrator
under 29 CFR 2510.3-16 and this section and under Sec. 54.9815-2713A.
(2) If a third party administrator receives a copy of the self-
certification from an eligible organization or a notification from the
Department of Labor, as described in paragraph (b)(1)(ii) of this
section, and agrees to enter into or remain in a contractual
relationship with the eligible
[[Page 51099]]
organization or its plan to provide administrative services for the
plan, the third party administrator shall provide or arrange payments
for contraceptive services using one of the following methods--
(i) Provide payments for contraceptive services for plan
participants and beneficiaries without imposing any cost-sharing
requirements (such as a copayment, coinsurance, or a deductible), or
imposing a premium, fee, or other charge, or any portion thereof,
directly or indirectly, on the eligible organization, the group health
plan, or plan participants or beneficiaries; or
(ii) Arrange for an issuer or other entity to provide payments for
contraceptive services for plan participants and beneficiaries without
imposing any cost-sharing requirements (such as a copayment,
coinsurance, or a deductible), or imposing a premium, fee, or other
charge, or any portion thereof, directly or indirectly, on the eligible
organization, the group health plan, or plan participants or
beneficiaries.
(3) If a third party administrator provides or arranges payments
for contraceptive services in accordance with either paragraph
(b)(2)(i) or (ii) of this section, the costs of providing or arranging
such payments may be reimbursed through an adjustment to the Federally-
facilitated Exchange user fee for a participating issuer pursuant to 45
CFR 156.50(d).
(4) A third party administrator may not require any documentation
other than a copy of the self-certification from the eligible
organization or notification from the Department of Labor described in
paragraph (b)(1)(ii) of this section.
(c) Contraceptive coverage--insured group health plans--(1) General
rule. A group health plan established or maintained by an eligible
organization that provides benefits through one or more group health
insurance issuers complies for one or more plan years with any
requirement under Sec. 54.9815-2713(a)(1)(iv) to provide contraceptive
coverage if the eligible organization or group health plan provides
either a copy of the self-certification to each issuer providing
coverage in connection with the plan or a notice to the Secretary of
Health and Human Services that it is an eligible organization and of
its religious objection to coverage for all or a subset of
contraceptive services.
(i) When a copy of the self-certification is provided directly to
an issuer, the issuer has sole responsibility for providing such
coverage in accordance with Sec. 54.9815-2713. An issuer may not
require any further documentation from the eligible organization
regarding its status as such.
(ii) When a notice is provided to the Secretary of Health and Human
Services, the notice must include the name of the eligible organization
and the basis on which it qualifies for an accommodation; its objection
based on its sincerely held religious beliefs to coverage of some or
all contraceptive services, as applicable (including an identification
of the subset of contraceptive services to which coverage the eligible
organization objects, if applicable); the plan name and type (i.e.,
whether it is a student health insurance plan within the meaning of 45
CFR 147.145(a) or a church plan within the meaning of ERISA section
3(33)); and the name and contact information for any of the plan's
third party administrators and health insurance issuers. If there is a
change in any of the information required to be included in the notice,
the organization must provide updated information to the Secretary of
Health and Human Services. The Department of Health and Human Services
will send a separate notification to each of the plan's health
insurance issuers informing the issuer that the Secretary of Health and
Human Services has received a notice under paragraph (c)(1) of this
section and describing the obligations of the issuer under this section
and under Sec. 54.9815-2713A.
(2) Payments for contraceptive services. (i) A group health
insurance issuer that receives a copy of the self-certification or
notification described in paragraph (b)(1)(ii) of this section with
respect to a group health plan established or maintained by an eligible
organization in connection with which the issuer would otherwise
provide contraceptive coverage under Sec. 54.9815-2713(a)(1)(iv)
must--
(ii) [Reserved]. For further guidance, see Sec. 54.9815-
2713A(c)(2)(ii).
(d) [Reserved]. For further guidance, see Sec. 54.9815-2713A(d).
(e) [Reserved]. For further guidance, see Sec. 54.9815-2713A(e).
(f) Expiration date. This section expires on August 22, 2017 or on
such earlier date as may be provided in final regulations or other
action published in the Federal Register.
DEPARTMENT OF LABOR
Employee Benefits Security Administration
For the reasons stated in the preamble, the Department of Labor
amends 29 CFR parts 2510 and 2590 as follows:
PART 2510--DEFINITION OF TERMS USED IN SUBCHAPTERS C, D, E, F, G,
AND L OF THIS CHAPTER
0
4. The authority citation for part 2510 is revised to read as follows:
Authority: 29 U.S.C. 1002(2), 1002(16), 1002(21),1002(37),
1002(38), 1002(40), 1031, and 1135; Secretary of Labor's Order 1-
2011, 77 FR 1088 (Jan. 9, 2012); Sec. 2510.3-101 also issued under
sec. 102 of Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR,
1978 Comp., p. 332 and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p.
275, and 29 U.S.C. 1135 note. Sec. 2510.3-102 also issued under sec.
102 of Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978
Comp., p. 332 and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275.
Sec. 2510.3-38 is also issued under sec. 1, Pub. L. 105-72, 111
Stat. 1457.
0
5. Revise the heading for part 2510 to read as set forth above.
0
6. Section 2510.3-16 is amended by revising paragraph (b) and adding a
new paragraph (c) to read as follows:
Sec. 2510.3-16 Definition of ``plan administrator.''
* * * * *
(b) In the case of a self-insured group health plan established or
maintained by an eligible organization, as defined in Sec. 2590.715-
2713A(a) of this chapter, if the eligible organization provides a copy
of the self-certification of its objection to administering or funding
any contraceptive benefits in accordance with Sec. 2590.715-
2713A(b)(1)(ii) of this chapter to a third party administrator, the
self-certification shall be an instrument under which the plan is
operated, shall be treated as a designation of the third party
administrator as the plan administrator under section 3(16) of ERISA
for any contraceptive services required to be covered under Sec.
2590.715-2713(a)(1)(iv) of this chapter to which the eligible
organization objects on religious grounds, and shall supersede any
earlier designation. If, instead, the eligible organization notifies
the Secretary of Health and Human Services of its objection to
administering or funding any contraceptive benefits in accordance with
Sec. 2590.715-2713A(b)(1)(ii) of this chapter, the Department of
Labor, working with the Department of Health and Human Services, shall
separately provide notification to each third party administrator that
such third party administrator shall be the plan administrator under
section 3(16) of ERISA for any contraceptive services required to be
covered under Sec. 2590.715-2713(a)(1)(iv) of this chapter to which
the eligible organization objects on religious grounds, with
[[Page 51100]]
respect to benefits for contraceptive services that the third party
administrator would otherwise manage. Such notification from the
Department of Labor shall be an instrument under which the plan is
operated and shall supersede any earlier designation.
(c) A third party administrator that becomes a plan administrator
pursuant to this section shall be responsible for--
(1) Complying with section 2713 of the Public Health Service Act
(42 U.S.C. 300gg-13) (as incorporated into section 715 of ERISA) and
Sec. 2590.715-2713 of this chapter with respect to coverage of
contraceptive services. To the extent the plan contracts with different
third party administrators for different classifications of benefits
(such as prescription drug benefits versus inpatient and outpatient
benefits), each third party administrator is responsible for providing
contraceptive coverage that complies with section 2713 of the Public
Health Service Act (as incorporated into section 715 of ERISA) and
Sec. 2590.715-2713 of this chapter with respect to the classification
or classifications of benefits subject to its contract.
(2) Establishing and operating a procedure for determining such
claims for contraceptive services in accordance with Sec. 2560.503-1
of this chapter.
(3) Complying with disclosure and other requirements applicable to
group health plans under Title I of ERISA with respect to such
benefits.
PART 2590--RULES AND REGULATIONS FOR GROUP HEALTH PLANS
0
7. The authority citation for part 2590 is revised to read as follows:
Authority: 29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169, 1181-
1183, 1181 note, 1185, 1185a, 1185b, 1185d, 1191, 1191a, 1191b, and
1191c; sec. 101(g), Pub. L. 104-191, 110 Stat. 1936; sec. 401(b),
Pub. L. 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 12(d),
Pub. L. 110-343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Pub.
L. 111-148, 124 Stat. 119, as amended by Pub. L. 111-152, 124 Stat.
1029; Secretary of Labor's Order 1-2011, 77 FR 1088 (January 9,
2012).
0
8. Section 2590.715-2713A is amended by revising paragraphs (b),
(c)(1), and (c)(2)(i) introductory text to read as follows:
Sec. 2590.715-2713A Accommodations in connection with coverage of
preventive health services.
* * * * *
(b) Contraceptive coverage--self-insured group health plans--(1) A
group health plan established or maintained by an eligible organization
that provides benefits on a self-insured basis complies for one or more
plan years with any requirement under Sec. 2590.715-2713(a)(1)(iv) to
provide contraceptive coverage if all of the requirements of this
paragraph (b)(1) are satisfied:
(i) The eligible organization or its plan contracts with one or
more third party administrators.
(ii) The eligible organization provides either a copy of the self-
certification to each third party administrator or a notice to the
Secretary of Health and Human Services that it is an eligible
organization and of its religious objection to coverage of all or a
subset of contraceptive services.
(A) When a copy of the self-certification is provided directly to a
third party administrator, such self-certification must include notice
that obligations of the third party administrator are set forth in
Sec. 2510.3-16 of this chapter and this section.
(B) When a notice is provided to the Secretary of Health and Human
Services, the notice must include the name of the eligible organization
and the basis on which it qualifies for an accommodation; its objection
based on sincerely held religious beliefs to coverage of some or all
contraceptive services (including an identification of the subset of
contraceptive services to which coverage the eligible organization
objects, if applicable); the plan name and type (i.e., whether it is a
student health insurance plan within the meaning of 45 CFR 147.145(a)
or a church plan within the meaning of ERISA section 3(33)); and the
name and contact information for any of the plan's third party
administrators and health insurance issuers. If there is a change in
any of the information required to be included in the notice, the
organization must provide updated information to the Secretary of
Health and Human Services. The Department of Labor (working with the
Department of Health and Human Services), shall send a separate
notification to each of the plan's third party administrators informing
the third party administrator that the Secretary of Health and Human
Services has received a notice under paragraph (b)(1)(ii) of this
section and describing the obligations of the third party administrator
under Sec. 2510.3-16 of this chapter and this section.
(2) If a third party administrator receives a copy of the self-
certification from an eligible organization or a notification from the
Department of Labor, as described in paragraph (b)(1)(ii) of this
section, and agrees to enter into or remain in a contractual
relationship with the eligible organization or its plan to provide
administrative services for the plan, the third party administrator
shall provide or arrange payments for contraceptive services using one
of the following methods--
(i) Provide payments for contraceptive services for plan
participants and beneficiaries without imposing any cost-sharing
requirements (such as a copayment, coinsurance, or a deductible), or
imposing a premium, fee, or other charge, or any portion thereof,
directly or indirectly, on the eligible organization, the group health
plan, or plan participants or beneficiaries; or
(ii) Arrange for an issuer or other entity to provide payments for
contraceptive services for plan participants and beneficiaries without
imposing any cost-sharing requirements (such as a copayment,
coinsurance, or a deductible), or imposing a premium, fee, or other
charge, or any portion thereof, directly or indirectly, on the eligible
organization, the group health plan, or plan participants or
beneficiaries.
(3) If a third party administrator provides or arranges payments
for contraceptive services in accordance with either paragraph
(b)(2)(i) or (ii) of this section, the costs of providing or arranging
such payments may be reimbursed through an adjustment to the Federally-
facilitated Exchange user fee for a participating issuer pursuant to 45
CFR 156.50(d).
(4) A third party administrator may not require any documentation
other than a copy of the self-certification from the eligible
organization or notification from the Department of Labor described in
paragraph (b)(1)(ii) of this section.
(c) * * *(1) General rule. A group health plan established or
maintained by an eligible organization that provides benefits through
one or more group health insurance issuers complies for one or more
plan years with any requirement under Sec. 2590.715-2713(a)(1)(iv) to
provide contraceptive coverage if the eligible organization or group
health plan provides either a copy of the self-certification to each
issuer providing coverage in connection with the plan or a notice to
the Secretary of Health and Human Services that it is an eligible
organization and of its religious objection to coverage for all or a
subset of contraceptive services.
(i) When a copy of the self-certification is provided directly to
an issuer, the issuer has sole responsibility for providing such
coverage in accordance with Sec. 2590.715-2713. An issuer may not
require any further documentation from the eligible organization
regarding its status as such.
[[Page 51101]]
(ii) When a notice is provided to the Secretary of Health and Human
Services, the notice must include the name of the eligible organization
and the basis on which it qualifies for an accommodation; its objection
based on its sincerely held religious beliefs to coverage of some or
all contraceptive services, as applicable (including an identification
of the subset of contraceptive services to which coverage the eligible
organization objects, if applicable); the plan name and type (i.e.,
whether it is a student health insurance plan within the meaning of 45
CFR 147.145(a) or a church plan within the meaning of ERISA section
3(33)); and the name and contact information for any of the plan's
third party administrators and health insurance issuers. If there is a
change in any of the information required to be included in the notice,
the organization must provide updated information to the Secretary of
Health and Human Services. The Department of Health and Human Services
will send a separate notification to each of the plan's health
insurance issuers informing the issuer that the Secretary of Health and
Human Services has received a notice under paragraph (c)(1) of this
section and describing the obligations of the issuer under this
section.
(2) * * * (i) A group health insurance issuer that receives a copy
of the self-certification or notification described in paragraph
(c)(1)(ii) of this section with respect to a group health plan
established or maintained by an eligible organization in connection
with which the issuer would otherwise provide contraceptive coverage
under Sec. 2590.715-2713(a)(1)(iv) must--
* * * * *
DEPARTMENT OF HEALTH AND HUMAN SERVICES
For the reasons stated in the preamble, the Department of Health
and Human Services amends 45 CFR part 147 as follows:
PART 147--HEALTH INSURANCE REFORM REQUIREMENTS FOR THE GROUP AND
INDIVIDUAL HEALTH INSURANCE MARKETS
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9. The authority citation for part 147 continues to read as follows:
Authority: Secs 2701 through 2763, 2791, and 2792 of the Public
Health Service Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and
300gg-92), as amended.
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10. Section 147.131 is amended by revising paragraphs (c)(1) and
(c)(2)(i) introductory text to read as follows:
Sec. 147.131 Exemption and accommodations in connection with coverage
of preventive health services.
* * * * *
(c) * * * (1) General rule. A group health plan established or
maintained by an eligible organization that provides benefits through
one or more group health insurance issuers complies for one or more
plan years with any requirement under Sec. 147.130(a)(1)(iv) to
provide contraceptive coverage if the eligible organization or group
health plan provides either a copy of the self-certification to each
issuer providing coverage in connection with the plan or a notice to
the Secretary of Health and Human Services that it is an eligible
organization and of its religious objection to coverage for all or a
subset of contraceptive services.
(i) When a self-certification is provided directly to an issuer,
the issuer has sole responsibility for providing such coverage in
accordance with Sec. 147.130. An issuer may not require any further
documentation from the eligible organization regarding its status as
such.
(ii) When a notice is provided to the Secretary of Health and Human
Services, the notice must include the name of the eligible organization
and the basis on which it qualifies for an accommodation; its objection
based on its sincerely held religious beliefs to coverage of some or
all contraceptive services, as applicable (including an identification
of the subset of contraceptive services to which coverage the eligible
organization objects, if applicable); the plan name and type (i.e.,
whether it is a student health insurance plan within the meaning of
Sec. 147.145(a) or a church plan within the meaning of ERISA section
3(33)); and the name and contact information for any of the plan's
third party administrators and health insurance issuers. If there is a
change in any of the information required to be included in the notice,
the organization must provide updated information to the Secretary of
Health and Human Services. The Department of Health and Human Services
will send a separate notification to each of the plan's health
insurance issuers informing the issuer that the Secretary of Health and
Human Services has received a notice under paragraph (c)(1) of this
section and describing the obligations of the issuer under this
section.
(2) * * * (i) A group health insurance issuer that receives a copy
of the self-certification or notification described in paragraph
(c)(1)(ii) of this section with respect to a group health plan
established or maintained by an eligible organization in connection
with which the issuer would otherwise provide contraceptive coverage
under Sec. 147.130(a)(1)(iv) must--
* * * * *
[FR Doc. 2014-20252 Filed 8-22-14; 3:30 pm]
BILLING CODE 4830-01- 4510-29-P; 4120-01-P; 6325-64-P