How Does Where You Work Affect Your Contraceptive Coverage?
The Affordable Care Act (ACA) requires most private health insurance plans to provide coverage for a broad range of preventive services including Food and Drug Administration (FDA) approved contraceptives and services for women, as prescribed. Since the implementation of this provision in 2012, some nonprofit and for profit employers with religious objections to contraceptives have brought legal challenges to this rule. For many women today, their contraceptive coverage depends on their employer or when they purchased their individual insurance plan.
Who has a plan that includes contraceptive coverage?
Women who have a non-grandfathered health insurance plan through an employer (either their own, their spouse’s or their parent’s) that does not have a religious objection to providing coverage for contraceptives are insured for the full range of prescribed FDA approved contraceptives without cost-sharing.
Women who work for religiously-affiliated nonprofits such as universities or health systems that have a religious objection to contraception typically have coverage for contraceptive services, although the employer will not have to pay for this coverage. Eligible nonprofits that object can file for an “accommodation” to the rule by either completing the EBSA 700 self-certification form or notifying HHS in writing about their objection (also providing the plan name, type and contact information for the health plan or the third party administrator). The accommodation releases these nonprofit employers from the requirement of paying for contraceptive coverage, and assures that the employees and their dependents are still able to obtain full coverage for contraceptives directly from the insurer as they are entitled to by federal law. A series of lawsuits, however, have been filed by nonprofit religiously affiliated employers, claiming that the federal accommodation and the notification to insurers violates their religious beliefs by making them “complicit” in the provision of contraceptive coverage to their workers. On May 16, 2016 the Supreme Court issued a decision in the consolidated case of Zubik v. Burwell – vacating and remanding the cases back to the lower courts with instructions to the parties to work it out. Nine Courts of Appeal have considered challenges to the accommodation. Eight Courts have ruled that the nonprofits are not substantially burdened by the accommodation. Only the 8th Circuit has ruled that the accommodation violates RFRA. All of the lower courts will re-hear the cases and issue new decisions.
In July 2016, the Departments of Health and Human Services (HHS), Labor and Treasury issued a Request for Information (RFI) inviting public comments on “whether there are alternative ways (other than those offered in current regulations) for eligible organizations that object to providing coverage for contraceptive services on religious grounds to obtain an accommodation, while still ensuring that women enrolled in the organization’s health plans have access to seamless coverage of the full range of Food and Drug Administration-approved contraceptives without cost sharing.” The Department of Justice notified the Courts of Appeal to take no action while the department receives comments on the RFI. For cases involving fully insured plans and self-insured plans (excluding church plans), the government will notify the insurance issuers and third-party administrators that they have an “obligation to make or arrange separate payments for contraceptives without cost to or involvement by plaintiffs.”
In a major case involving for profit employers, Hobby Lobby v. Burwell, the Supreme Court ruled that “closely held” corporations may exclude contraceptives from their health plans if their owners have sincerely held religious objections as determined by a court. On July 10, 2015 HHS issued rules requiring closely held corporations to comply with an accommodation rather than allowing an exemption. Hobby Lobby and other similar corporations are now required to notify their insurer or HHS of their objections to contraceptive coverage so that the insurer can still provide the contraceptive coverage directly to the employees and their dependents. These regulations have the effect of restoring contraceptive coverage to workers employed by closely held corporations with religious objections.
Who may not have contraceptive coverage in their plan?
Women who work for a house of worship that objects to contraceptive coverage do not have guaranteed coverage for the full range of FDA approved contraceptives. Houses of worship are exempt from the contraceptive coverage requirement. Women enrolled in student health plans may not have contraceptive coverage without cost-sharing because the rules for student health plans depend on whether the college has a self-insured plan or a fully insured plan. Colleges or universities that purchase insurance from a health insurance company are required to provide contraceptive coverage for women. Religious institutions of higher education with objections to providing contraceptive services are eligible for an accommodation and do not have to pay for coverage, but faculty, staff and students will still have no-cost contraceptive coverage provided by the health insurance company. Student health plans that are self-insured, however, may not be required to cover contraceptive services without cost-sharing because it’s up to states to set that policy, and not federal law, in the cases of self-insured student plans.
Women enrolled in grandfathered plans may not have contraceptive coverage. Grandfathered health plans are plans that were in existence on March 23, 2010 and have stayed basically the same. These plans are not required to provide all of the benefits, including preventive health services, required of other health plans. In 2016, 23% of covered workers were enrolled in a grandfathered health plan.