CMS’ Center for Consumer Information & Insurance Oversight (CCIIO) provided clarification of notice procedures for employers that, based on sincerely held religious or moral beliefs, object to providing contraceptive preventive services. The CCIIO detailed procedures that must be followed if such "objecting entities" no longer wish to use an accommodation previously provided in interim final rules published on October 13, 2017 (82 FR 47838; 82 FR 47792), that enabled certain employers to allow employees access to contraceptive preventive services via an indirect route (CCIIO Letter, November 30, 2017).
The Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) generally requires all non-grandfathered group health plans to provide certain contraceptive benefits, including all FDA-approved contraceptive methods. Previously, final regulations (80 FR 41318, July 14, 2015) had provided an exemption from this requirement for some entities and an accommodation for others.
Exemption expanded. The October 13, 2017 interim final rules expanded this exemption to include all employers (except non-federal governmental employers) who objected to providing contraceptive coverage, based on either sincerely held religious beliefs or sincerely held moral beliefs. At the same time, a voluntary accommodation process was also made available that would allow employers to have their health insurance issuer or TPA directly provide contraceptive benefits to participants and beneficiaries, independent of their health plans.
The new CCIIO guidance explains that, if an employer had previously opted for the accommodation, but now, in light of the new expanded exemption, wishes to revoke it, the employer must properly notify plan participants and beneficiaries. The CCIIO states that the notification requirement will be considered to be satisfied if either the health plan issuer, the employer, its group health plan, or its TPA provides the notice. According to the CCIIO, revocation of the accommodation for providing contraceptive coverage is effective on the first day of the first plan year that begins on or after 30 days after the revocation date.
60-day SBC process. Alternatively, if a contraceptive benefit is listed in an objecting entity’s summary of benefits and coverage (SBC), the group health plan or issuer may use an advance notice method, to be provided at least 60 days in advance, consistent with applicable law. The CCIIO adds that, if an objecting entity’s SBC does not list the contraceptive benefit, it may still use the 60-day advance notice method to revoke the accommodation, as if those benefits had been listed in its SBC. Notices of modifications of benefits "must be provided in a form consistent with" applicable regulations, which, in turn, say that SBC materials may be generally provided to participants and beneficiaries either in paper form or electronically, if the paper form is available upon request.
30-day process. If an objecting entity chooses not to use the above SBC notification process and it also instructs its issuer and TPA not to use it on the entity’s behalf, then either the objecting entity, the group health plan, the issuer, or the TPA must send a separate written notice of the revocation to participants and beneficiaries no later than 30 days before the first day of the first plan year in which the revocation will be effective. Employers should take note of the fact that a mid-year modification of benefits can be effective via the SBC notification process, but not by the 30-day notification process. The 30-day notification process can only effectuate benefit modifications at the beginning of a plan year.
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