February 1, 2023
CMS issues proposed rule on ACA's contraceptive coverage requirements
On January 30, the U.S. Department of Health & Human Services (HHS) and the Departments of Labor and the Treasury (the Departments) proposed a rule that revises regulations implementing the Affordable Care Act's (ACA) coverage guarantee for birth control and contraceptive counseling.
"Now more than ever, access to and coverage of birth control is critical as the Biden-Harris Administration works to help ensure women everywhere can get the contraception they need, when they need it, and — thanks to the ACA — with no out-of-pocket cost," HHS Secretary Xavier Becerra said in a press release. "Today's proposed rule works to ensure that the tens of millions of women across the country who have and will benefit from the ACA will be protected. It says to women across the country, we have your back."
Under the ACA, women who are enrolled in non-grandfathered group or individual health insurance coverage are guaranteed access to no cost preventive services, including certain birth control and contraceptive counseling. Regulations implementing the law's contraceptive coverage requirement have been challenged in court by religious and non-religious employer organizations seeking to carve out additional exceptions for religious and moral objections to contraceptive coverage services. In response to those lawsuits, the Departments, under former President Donald Trump's administration, issued final rules in 2018 to expand exemptions for individuals with religious objections to contraceptive coverage services and add a new exemption for moral objections. Those rules triggered a new group of lawsuits from patients and states who argued the exemptions could negatively impact women who would lose access to the covered contraceptives. Lawsuits filed by three states are still playing out in courts.
The latest proposed rule would eliminate the 2018 rule's exemption for entities with a non-religious moral objection, noting that there is no moral-exemption statue similar to the Religious Freedom Restoration Act, which allows for religious exemptions.
The rule would maintain the 2018 rule's religious exemption but proposes an independent pathway for individuals enrolled in plans arranged or offered by entities with a religious exemption to contraceptive services to directly access no out-of-pocket cost contraceptive services through a contraceptive provider. As the Departments wrote, "Simply put, the action is undertaken by the individual, on behalf of the individual." Under the rules, the contraceptive provider, which the rules state could be a pharmacy, would need to enter a signed agreement with a payer to be reimbursed for providing contraceptive services to women covered under such plans. The proposed rule will be open for public comment for 60 days beginning February 2.