Proposed Rule Adds Contraceptive Coverage Pathway, Cuts Moral Exemption

Under a newly proposed rule, the Biden administration would remove the moral exemption for health plan coverage of birth control while keeping the religious exemption intact, a fact sheet from the US Department of Healthcare and Human Services explained.

The proposed rule would eliminate the moral exemption option. HHS said that this approach would not limit the scope of the companies, payers, or individuals who could claim a religious exemption.

“The Departments considered maintaining the exemption (along with the existing accommodations and the proposed individual contraceptive arrangement) with respect to group health plans, health insurance issuers, and institutions of higher education that have a nonreligious moral objection to contraceptive coverage,” the unpublished rule explained.

“The Departments, however, are of the view that neither RFRA nor any other Federal statute compels such an exemption, and propose eliminating this exemption for several reasons, especially given the strong public interest in assuring contraceptive coverage to women enrolled in group health plans, or group or individual (including student) health insurance coverage.”

If finalized, the rule would also introduce a new pathway for individuals whose payers did not opt into the accommodation.

“This individual contraceptive arrangement would be available to the participant, beneficiary, or enrollee without the objecting entity having to take any action facilitating the coverage to which it objects. Simply put, the action is undertaken by the individual, on behalf of the individual,” the fact sheet summarized.

The individual contraceptive arrangement would reimburse willing providers of contraceptive services through a contracted qualified health plan. While the pathway is new for this scenario, the concept itself is not novel. The same type of independent pathway is already in use in the optional accommodation for self-insured group health plans.

“We know that access to affordable health care is vital. HHS, along with the Department of Labor and the Department of the Treasury, continues to protect and promote access to the reproductive health care services people need, including contraception,” CMS Administrator Chiquita Brooks-LaSure said in the press release.

“If this rule is finalized, individuals who have health plans that would otherwise be subject to the ACA preventive services requirements but have not covered contraceptive services because of a moral or religious objection, would now have access.”

The current law allows payers to refuse to pay for contraceptives or refer employees or members for contraceptive care if the payers have a religious or moral objection.

This does not mean that members have zero coverage for their contraceptives. The Affordable Care Act requires that members face no out-of-pocket healthcare spending for contraceptives. In the case of a religious or moral objection, payers can opt to employ an accommodation in which a third-party administrator, instead of the payer, arranges for the contraceptive’s reimbursement.

However, this accommodation is not required and in the individual health insurance marketplace it is not available at all. If the payer does not invoke the accommodation, members may face cost-sharing.

The comment period will end 60 days after the proposed rule is published in the Federal Register.

This proposed rule is one of many actions that payers and policymakers have taken in the wake of the Supreme Court overturning Roe v. Wade.

The rule also joins a long history of legislation on contraceptive access. The Health Resources and Services Administration (HRSA) updated its preventive care services guidelines to ensure access to contraceptives and other preventive care services.

Healthcare professionals have also defended the Affordable Care Act’s preventive care requirement—which encompasses contraceptive access—in court. The American Medical Association submitted an amicus brief in the case of Braidwood Management Inc, et al v Becerra protecting the preventive care requirement.