Group health plans that are not grandfathered under the 2010 health care reform law (the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Reconciliation Act of 2010) must provide women’s contraception without cost-sharing beginning with the first plan year that starts on or after August 1, 2012. The three agencies primarily responsible for enforcement of the health care reform law – the Departments of Treasury, Labor, and Health and Human Services (“HHS”) – issued regulations on August 1, 2011, further implementing the health care reform law’s provision that requires coverage of preventive services without cost-sharing. The statutory provision requires plans to cover (among other preventive services) women’s preventive care and screening services that are included in guidance supported by the Health Resources and Services Administration (“HRSA”). (For more information about grandfathering, see our article, Health Care Reform Law: Agencies Explain “Grandfathering”.)
Under the new regulations and in accordance with HRSA-supported guidelines, preventive services for women include all FDA-approved contraception (which, according to the HHS website does not include abortifacient drugs – so-callled “morning-after” pills), annual well-woman visits, breastfeeding supplies and support, domestic violence screening, annual screening for gestational diabetes, human papillomavirus testing every three years (for women at least 30 years old), annual sexually transmitted infection counseling, and annual human immunodeficiency virus screening and counseling. The requirement for non-grandfathered group health plans to provide for these services without deductibles, co-pays or other cost-sharing applies regardless of whether the plan is self-funded or fully insured. The preamble to the regulations includes a reminder that a more strict state insurance law will not be preempted by the Employee Retirement Income Security Act of 1974. In other words, plans would have to comply with any state law that requires insurers and health maintenance organizations to provide coverage for more services than the new regulations require.
The regulations include an exception for plans sponsored by “religious employers” that offer health coverage for employees. For this purpose, a religious employer is an organization (1) for which the inculcation of religious values is its purpose, (2) that primarily employs and serves persons who share its religious tenets, and (3) that is a nonprofit organization described in Internal Revenue Code (“Code”) sections 6033(a)(1) and 6033(a)(3)(A)(i) or (iii).
The Department of Treasury’s regulations apply the excise tax provisions of Code section 4980D (generally $100 per day per individual, with certain limits and exceptions) to group health plan sponsors for failure to provide the required women’s preventive service coverage without cost-sharing.
Jackson Lewis LLP’s interdisciplinary Health Care Reform task force provides guidance to employers and plan sponsors regarding obligations and strategies under the health care reform law and related laws. For more information about our resources in this area, please contact Monique Warren (White Plains, warrenm@jacksonlewis.com), Joe Lazzarotti (White Plains, lazzaroj@jacksonlewis.com), or Lisa deFilippis (Cleveland, defilipl@jacksonlewis.com).