[Federal Register Volume 82, Number 197 (Friday, October 13, 2017)]
[Pages 47769-47770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-22064]



Employee Benefits Security Administration

Proposed Extension of Information Collection Request Submitted 
for Public Comment; Coverage of Certain Preventive Services Under the 
Affordable Care Act--Private Sector

AGENCY: Employee Benefits Security Administration, Department of Labor.

ACTION: Notice.


SUMMARY: The Department of Labor (the Department), in accordance with 
the Paperwork Reduction Act of 1995 (PRA 95), provides the general 
public and Federal agencies with an opportunity to comment on proposed 
and continuing collections of information. This helps the Department 
assess the impact of its information collection requirements and 
minimize the reporting burden on the public and helps the public 
understand the Department's information collection requirements and 
provide the requested data in the desired format. Currently, the 
Employee Benefits Security Administration is soliciting comments on a 
revision of the Coverage of Certain Preventive Services under the 
Affordable Care Act--Private Sector information collection request 
(ICR) to reflect the Executive Order signed on May 4, 2017, ``Executive 
Order Promoting Free Speech and Religious Liberty.'' The order 
declares, regarding ``Conscience Protections with Respect to 
Preventive-Care Mandate,'' that ``[t]he Secretary of the Treasury, the 
Secretary of Labor, and the Secretary of Health and Human Services 
shall consider issuing amended regulations, consistent with applicable 
law, to address conscience-based objections to the preventive-care 
mandate promulgated under section 300gg-13(a)(4) of title 42, United 
States Code.''
    A copy of the information collection request (ICR) may be obtained 
by contacting the office listed in the ADDRESSES section of this 

DATES: Written comments must be submitted to the office shown in the 
ADDRESSES section on or before December 12, 2017.

ADDRESSES: Direct all written comments regarding the information 
collection request and burden estimates to the Office of Policy and 
Research, Employee Benefits Security Administration, U.S. Department of 
Labor, 200 Constitution Avenue NW., Room N-5718, Washington, DC 20210. 
Telephone: (202) 693-8410; Fax: (202) 219-4745. These are not toll-free 
numbers. Comments may also be submitted electronically to the following 
Internet email address: [email protected].


I. Background

    The Departments of Labor, the Treasury, and Health and Human 
Services are issuing 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 final regulations issued on July 2, 2013 (78 FR 
39870), 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 the final regulations, 
group health plans established or maintained by certain nonprofit 
organizations that hold themselves out as religious organizations and 
that have religious objections to contraceptive coverage (eligible 
organizations) are eligible for an accommodation.
    The final regulations require each organization seeking 
accommodation to self-certify that it meets the definition of an 
eligible organization. The organization must send a copy of the self-
certification to an issuer or third-party administrator. The 
organizations seeking the accommodation must maintain the self-
certification/notification in a manner consistent with the record 
retention requirements under section 107 of the Employee Retirement 
Income Security Act of 1974, which generally requires records to be 
maintained for six years. The form that is used by eligible 
organizations for their self-certification is EBSA Form 700, which is 
an information collection request (ICR) subject to the Paperwork 
Reduction Act.
    The August 2014 interim final and July 2015 final regulations 
augmented the 2013 final regulations and revised the EBSA Form 700 ICR 
in light of the

[[Page 47770]]

Wheaton order.\1\ Specifically, the final regulations continued 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, the final regulations permitted an 
alternative process, consistent with the Wheaton order, under which an 
eligible organization could notify the Secretary of HHS that it will 
not act as the plan administrator or claims administrator with respect 
to, or contribute to the funding of, coverage of all or a subset of 
contraceptive services. The notification must include information 
sufficient to identify the plan, plan type (including whether it is a 
church plan within the meaning of ERISA section 3(33)), and the 
identity and mailing addresses of any third party administrators.

    \1\ The Supreme Court of the United States interim order in 
connection with an application for an injunction in the pending case 
of Wheaton College v. Burwell (the ``Wheaton order'').

    The 2017 interim final rules amend the Departments' July 2015 final 
regulations to expand the exemption to include additional entities (any 
kind of non-governmental employer) and persons that object based on 
religious beliefs or moral convictions objecting to contraceptive or 
sterilization coverage, and by making the accommodation compliance 
process optional for eligible organizations instead of mandatory. These 
rules leave in place HRSA's discretion to continue to require 
contraceptive and sterilization coverage where no objection exists, and 
to the extent that PHS Act section 2713 otherwise applies. With respect 
to employers, the expanded exemption in these rules covers employers 
that have religious beliefs or moral convictions objecting to coverage 
of all or a subset of contraceptives or sterilization and related 
patient education and counseling. While the rules cover any kind of 
non-governmental employer but, for the sake of clarity, these 
regulations also include an illustrative list of employers whose 
objection qualifies the plans they sponsor for an exemption.
    Consistent with the current exemption, exempt entities will not be 
required to comply with a self-certification process. Although exempt 
entities do not need to file notices or certifications of their 
exemption, existing rules governing health plans require that a plan 
document specify what is and is not covered. Thus where an exemption 
applies and all or a subset of contraception is omitted from a plan's 
coverage, the plan document and otherwise applicable ERISA disclosures 
\2\ should reflect the omission of coverage. This is not an added 
obligation, but it will serve to help provide notice of what plans do 
and do not cover.

    \2\ See, e.g., 29 CFR 2520.104b-3(d).

    As in the previous rule, institutions of higher education that 
arrange student health insurance coverage will continue to be treated 
similar to the way employers are treated for the purposes of such plans 
being exempt. These interim final rules also exempt group health plans 
sponsored by an entity other than an employer, and health insurance 
issuers in the group and individual market, that object based on 
religious beliefs or moral convictions to coverage of contraceptives or 
sterilization. The rules also exempt health coverage offered or 
provided to certain individuals with their own religious or moral 
    Employers that under the previous rules had used the accommodation 
process, but can now be exempt may now choose to revoke their use of 
the accommodation process, but in order to do so they must provide 
participants and beneficiaries written notice of such revocation as 
soon as possible.
    The Office of Management and Budget (OMB) approved the amendments 
to EBSA Form 700 required as a revision to OMB Control Number 1210-0150 
under the emergency procedures for review and clearance in accordance 
with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 
Chapter 35) and 5 CFR 1320.13. OMB's approval of the revision currently 
are schedule to expire on September 30, 2018. In an effort to 
consolidate the number of information collection requests, the 
Department is combining the burden from 1210-0152 into 1210-0150. Once 
this ICR is approved the Department will discontinue. 1210-0152.

II. Current Actions

    This notice requests public comment pertaining to the Department's 
request for extension of OMB's approval of its revision to EBSA Form 
700. After considering comments received in response to this notice, 
the Department intends to submit an ICR to OMB for continuing approval. 
Changes to the current ICR include an expansion to the number of firms 
that qualify for the exemption, making the accommodation process 
optional, and requiring firms that are revoking their current 
accommodation to send a notice to plan participants and beneficiaries. 
The Department notes that an agency may not conduct or sponsor, and a 
person is not required to respond to, an information collection unless 
it displays a valid OMB control number. A summary of the ICR and the 
current burden estimates follows:
    Type of Review: Revised Collection.
    Agency: DOL-EBSA.
    Title: Coverage of Certain Preventive Services under the Affordable 
Care Act--Private Sector.
    OMB Numbers: 1210-0150.
    Affected Public: Private Sector--Not for profit and religious 
organizations; businesses or other for profits.
    Total Respondents: 114 (combined with HHS total is 227).
    Total Responses: 274,628 (combined with HHS total is 549,255).
    Frequency of Response: On occasion.
    Estimated Total Annual Burden Hours: 181 (combined with HHS total 
is 362 hours).
    Estimated Total Annual Burden Cost: $68,662 (combined with HHS 
total is $137,325).

III. Desired Focus of Comments

    The Department of Labor (Department) is particularly interested in 
comments that:

     Evaluate whether the proposed collection of information 
is necessary for the proper performance of the functions of the 
agency, including whether the information will have practical 
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., by 
permitting electronic submissions of responses.

    Comments submitted in response to this notice will be summarized 
and/or included in the ICR for OMB approval of the extension of the 
information collection; they will also become a matter of public 

    Dated: October 5, 2017.
Joseph S. Piacentini,
Director, Office of Policy and Research, Employee Benefits Security 
[FR Doc. 2017-22064 Filed 10-12-17; 8:45 am]