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ACA’s Contraceptive Mandate No Longer Enforceable for Certain Employers

The Affordable Care Act (ACA) establishes requirements for group health plans. Among these is the requirement for non-grandfathered group health plans to offer preventive care with no cost sharing.

The ACA requires the inclusion of FDA-approved contraceptive methods in a group health plan’s list of preventive care treatments. Employers face stiff penalties for failure to comply with these coverage requirements.

This mandate requiring group health plans to include coverage for contraceptives has been unpopular among religious and other organizations since its introduction.

A series of complaints and lawsuits surround this mandate:

  • 6/30/2014 – The Supreme Court ruled that the Department of Health and Human Services (HHS) regulation requiring employers to provide their female employees with no-cost access to contraception violates the Religious Freedom Restoration Act for certain closely held corporations (Burwell v. Hobby Lobby) - result is that qualifying religious employers are exempt from the contraceptive coverage mandate and certain other employers with religious objections
  • 8/4/2017 – The Court of Appeals affirms District Court’s decision in Real Alternatives v. HHS, deciding two issues: that an exemption cannot be granted for an employer who objects on a moral, rather than, religious basis and that an individual who objects on religious grounds does not have to offer coverage that does not contain contraceptive coverage
  • 10/13/2017 – Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the ACA – Interim final rules issued by the Departments (Internal Revenue Service (IRS), Department of the Treasury; Employee Benefits Security Administration, Department of Labor; and Centers for Medicare & Medicaid Services, Department of Health and Human Services) expands the exemption to certain entities or individuals with sincerely held religious beliefs [religious exemption]1
  • 11/15/2018 – Moral Exemptions and Accommodations for Coverage of Certain Preventive Services under the ACA – Final rules issued by the Departments – effective January 14, 2019 – expands interim final ruling to finalize exemptions for certain entities and individuals to protect their moral beliefs [moral exemption]2

Latest Developments

Both the Departments and the plaintiffs agree with these exemptions. The Departments, do not, however, agree to an order that prohibits the IRS from collecting employer mandate penalties or that extends to future members. Plaintiffs argue that with no mandate, there can be no penalty.

Hearing the case, the District Court agrees and grants a permanent injunction prohibiting the Departments from enforcing abortifacient-related3 requirements or any corresponding penalties. These penalties include ACA employer mandate penalties, group health plan compliance requirements and ERISA’s civil enforcement provisions. Further, the Court states that these employers can comply by offering health plans that exclude coverage for abortion-causing drugs, devices and procedures.

OneDigital’s team of compliance experts are closely monitoring any updates or legislative changes and translating them on behalf of our clients. Visit OneDigital’s Compliance Confidence page to stay informed.

 

1. Religious exemption includes individual or nongovernmental entity objecting to furnish coverage for some or all contraceptives based on sincerely held religious beliefs.

2. Moral exemption includes entities or individuals objecting to some or all contraceptives based on sincerely held moral convictions – includes nonprofit organizations, closely held businesses (not publicly traded), higher education, health insurers serving exempt entities and individuals, and association health plans with no publicly traded ownership interests.

3. Abortifacient– causing abortion (namely a drug)

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