Feds ask if offering birth control-only plans could work

Federal regulators are looking into the feasibility of creating a new type of health benefit: birth control coverage that would be free for the insureds.

Regulators are asking whether insurers could really offer the product, and whether the existence of the product would resolve religious employers’ objections to the Obama administration’s current approach to administering a U.S. Department of Health and Human Services birth control coverage mandate.

The “tri-agency” team that oversees administration of Affordable Care Act laws, regulations and programs — the Internal Revenue Service, the Employee Benefits Security Administration and the U.S. Department of Health and Human Services — talk about the proposal in a new contraceptive services coverage proposal.

The agencies are preparing to publish the request for information in the Federal Register Friday. Comments will be due 60 days after the official publication date.

HHS lists David Mlawsky as its contact person. The employee benefits administration lists Elizabeth Schumacher and Suzanne Adelman as contacts, and the IRS lists Karen Levin as a contact.

Supreme Court Justice Samuel Alito proposed birth-control-only coverage in March, during oral arguments on Zubik et al. v. Burwell et al. (Case Number 14-1418).

The Affordable Care Act requires nongrandfathered health plans to cover a standard package of preventive services without imposing deductibles, co-payments or other cost-sharing costs on the patients getting the services. Former HHS Secretary Kathleen Sebelius ruled, based on recommendations from the HHS Health Resources and Services Administration, that the package should include coverage for contraceptive products and services.

The issue

Federal agencies were going to require religious employers that wanted an exemption from that mandate to notify HHS, so that HHS could arrange for birth control coverage for those employers’ employees. The religious employers argued that having to send HHS the notices would make them complicit in the act of providing birth control benefits, and violate their rights under the federal Religious Freedom Restoration Act of 1993.

The Supreme Court suggested, in a unanimous opinion opposing the HHS approach to administering the birth control benefits mandate, that federal agencies should consider having an employer simply notify its health coverage provider, or self-insured plan administrator, that it opposes covering contraceptives. The coverage provider could than arrange for separately funded coverage, which would be paid for by parties other than the affected employees, to fill in the contraceptive coverage gap for the religious employer’s employees, the court said, in an opinion attributed to the court as a whole.

Alito said in March, during oral arguments on the case, that regulators could have employees affected by religious employers’ decisions not to cover contraceptives sign up for free contraceptive plans through the ACA public health insurance exchange system.

The employee who goes to the exchange for contraceptive coverage “will have two insurance cards instead of one,” Alito said. “She’ll have one from the employer, and she’ll have one from this plan.”