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HHS Clarifies Temporary Enforcement Safe Harbor for Contraceptive Services under Plans of Certain Religious Employers

By Alden J. Bianchi

The Affordable Care Act’s requirements relating to first dollar coverage of preventive has hit something of a snag on the subject to coverage of contraceptive services on the part of religiously-affiliated entities such as colleges, universities and hospitals.  Under rules previously issued by HHS, these employers are requires to provides the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling.

Responding to comments, HHS (through its Center for Consumer Information and Insurance Oversight (CCIIO)) established a temporary enforcement safe harbor for organizations with religious objections to contraceptive coverage.  To qualify for the safe harbor, an organization had to demonstrate, among other things, that “From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization.” 

CCIIO recently reissued its February 10, 2012 guidance in which in which it recognized that merely having previously provided contraceptive coverage should not bar access to the safe harbor in all instances.  Specifically, it relaxed the requirement to provide that the safe harbor would be available if the organization “took some action to try to exclude or limit such coverage that was not successful.”  While many organizations may have preferred that CCIIO simply eliminate the requirement altogether, this is appears to be a significant loosening of the rule and corresponding expansion of the safe harbor. 

For a discussion of this recent CCIIO bulletin, please click here to read our client advisory.

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Martha Zackin