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Agency Adds Wiggle Room to Birth Control Rules

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The Center for Consumer Information and Insurance Oversight (CCIIO) has come out with a new, slightly more flexible version of a contraceptive services benefits bulletin it issued in February.

The CCIIO, an arm of the Centers for Medicare & Medicaid Services (CMS), has added options aimed at nonprofit religious employers that object to the idea of including contraceptive services coverage in their health benefits packages. 

The Patient Protection and Affordable Care Act of 2010 (PPACA) requires individual health insurers and group health plans to cover a basic set of preventive services created by the U.S. Health and Human Services (HHS) secretary without imposing deductibles, co-payment requirements, or other cost-sharing requirements on the patients.

HHS Secretary Kathleen Sebelius has ruled that the preventive services packages should include services and products aimed at women — including Pap smears and breastfeeding supplies as well as contraceptive services — starting with plan years beginning on or after Aug. 1.

The safe harbor CCIIO issued in February frees houses of worship, religious denominations and other clearly religious employers from having to offer birth control benefits.

The safe harbor does not provide an exemption for colleges, hospitals and other types of nonprofit employers that are formally or informally affiliated with religious organizations.

The February safe harbor does create a temporary exemption for other nonprofit employers that are not eligible for the religious employer exemption but have been refusing to offer contraceptive benefits for religious reasons.

Many religious organizations, hundreds of members of Congress and at least 7 states have opposed the birth control coverage requirement and what they believe to be the narrow scope of the safe harbor.

Supporters of the HHS approach say that HHS is taking the advice of a panel of experts, that analysts have found that access to contraceptive services lowers overall health care costs, and that the federal government has applied other labor laws, such as minimum wage laws, to religious employers without creating conscientious objection exemptions.

Opponents say requiring employers to offer benefits that they believe to be abhorrent violates their civil rights.

The CCIIO says the new bulletin is a revision of the bulletin issued in February.

The new bulletin clarifies that eligible nonprofit religious employers that object to providing coverage for some types of contraceptive services but not others can use the safe harbor to avoid providing coverage for some contraceptive services without cutting out coverage for all contraceptive services, the CCIIO says.

In a second clarification, the CCIIO says the safe harbor “may be invoked without prejudice by non-profit organizations that are uncertain whether they qualify for the religious employer exemption.” That provision appears to mean that HHS and the U.S. Labor Department will not penalize employers that use the safe harbor and later find out that they will not be classified as religious employers.

In a third clarification, officials say group health plans that made an unsuccessful effort to avoid providing contraceptive benefits Feb. 10 or earlier can still use the safe harbor.

An employer also can use the temporary safe harbor now and try to qualify for the permanent exemption later, officials say.

The new safe harbor bulletin will be in effect until the first plan year that begins on or after Aug. 1, 2013.


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