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A Guide to the Supreme Court's Review of the Contraceptive Coverage Requirement

Background

In addition to expanding access to health insurance, the Affordable Care Act (ACA) requires new private plans to provide coverage for a broad range of preventive services that fall under four broad categories: evidence-based screenings and counseling, routine immunizations, childhood preventive services, and preventive services for women. Health plans with grandfathered status are not required to provide all of the benefits and consumer protections, including preventive health services, required of other health plans. Grandfathered health plans are plans that were in existence on March 23, 2010 and have stayed basically the same.

The preventive services for women that must be covered include eight additional services, identified by an Institute of Medicine expert panel. These include screening for intimate partner violence, well woman visits, breastfeeding supports as well as prescription contraceptives and services, including all methods approved by the Food and Drug Administration. In August 2011, HHS adopted these recommendations, adding these eight services to the preventive services originally included in the ACA legislation. Initially, the rule requiring coverage of contraceptives included a very narrow exemption only for houses of worship1 that object to the contraceptive coverage requirement. In February 2012, this rule was modified, giving other religiously affiliated nonprofit employers such as hospitals and universities who hold religious objections to contraceptives a one-year “safe harbor” or grace period (until August 2013), during which they did not have to comply with the regulation.

After some religious leaders called for a broader exemption, the Administration responded by modifying the rule again in July 2013 allowing religiously affiliated nonprofits to request an “accommodation.” This accommodation “protects certain nonprofit religious organizations with religious objections to providing contraceptive coverage from having to contract, arrange, pay, or refer for such coverage”2 instead requiring their insurers to bear the cost of employees’ contraceptive coverage. The accommodation is intended to release nonprofit religiously affiliated employers that oppose birth control from the requirement of paying for contraceptive coverage, and assure that the employees and their dependents are still able to obtain full coverage for contraceptives directly from the insurer as they are entitled to under the law. This “accommodation” is only available to “eligible organizations” meeting the criteria: 1) opposes providing for some or all of any contraceptive coverage on account of religious objections; 2) has nonprofit status; 3) holds itself out as a religious organization; and 4) self-certifies that it meets the first three criteria.3

No exemption or accommodation, however, is available to for-profit employers. All for-profit employers with fifty or more employees must provide the contraceptive coverage unless they are offering coverage through a grandfathered plan. Small employers (less than fifty employees) are not penalized for not offering health insurance to their workers. However, if a small employer does provide health insurance it must cover preventive services, including contraceptives for women.

Figure 1: Contraceptive Coverage Rules

What is required to be covered? All FDA approved contraceptive methods, as prescribed, must be covered without cost-sharing. At least one version of each method must be covered, including brand-name versions if no generic option is available.
Who is required to cover contraceptives? All new private health insurance plans offering prescription drug coverage. This includes all non-group, small and large group and self-funded plans. Grandfathered plans do not have to comply with this requirement or the other insurance reforms in the ACA.
Who is exempt from the contraceptive mandate or can request an accommodation? Religious institutions defined as “houses of worship” are exempt. Women employees or dependents of those working for an employer which is exempt may not have insurance coverage for contraceptives if their employer has a religious objection to contraceptives.Religiously affiliated organizations that oppose providing contraceptive coverage due to religious objections, are nonprofit, and identify as a religious organization can request an accommodation. These organizations must self-certify that they are eligible organizations and will be granted an accommodation so they are not required to purchase contraceptive coverage, but employees and their dependents will still have access to contraceptive coverage through insurance companies or third party administrators without cost-sharing.
How do employees of organizations with accommodations obtain contraceptive coverage? Insurance companies are required to cover the cost of contraceptives for employees of religiously affiliated organizations that have requested an accommodation at no cost to the employees or the employers.Third-party administrators of self-funded health plans must provide or arrange payments for contraceptive coverage for the workers of the employer requesting the accommodation and offset the costs of the contraceptive coverage by payment reductions in the fees paid to the federal exchange.4
Executive Summary Legal Challenges