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September 25, 2012

Women's Health Services And The Patient Protection & Affordable Care Act

Summary:

Employers and other sponsors and insurers of group health plans should review and update their health plan documents, contracts, communications and administration practices to ensure that their health plans and policies appropriately cover contraceptive services and other prevention-related services that current federal regulations mandate that group health plans (other than grandfathered plans) must cover to comply with the Affordable Care Act.

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Effective August 1, 2012, federal regulators expanded the list of prevention-related services that the Patient Protection & Affordable Care Act (Affordable Care Act) requires that non-grandfathered group health plans cover in-network at no cost to covered persons to include eight more prevention-related health services for women including coverage for the mandate to cover certain contraceptive services that has engendered much debate and opposition from various religious organizations and others.

Employers and other sponsors and insurers of group health plans should review and update their health plan documents, contracts, communications and administration practices to ensure that their health plans and policies appropriately cover these and other prevention-related services that current federal regulations mandate that group health plans (other than grandfathered plans) must cover to comply with the Affordable Care Act.

Affordable Care Act Requires Non-Grandfathered Health Plans Cover Lengthy List of Prevention-Related Care With No Cost Sharing

As part of the sweeping reforms enacted by the Affordable Care Act, Congress has mandated that except for certain plans that qualify as “grandfathered,” group health plans and insurers generally must pay for 100% of the cost to cover hundreds of prevention-related health care services for individuals covered under their health plans without any co-payments or other cost-sharing.

Federal regulations have mandated since 2010 that group health plans and insurers provide in-network coverage in accordance with federal regulations implementing the Affordable Care Act’s prevention-related health services mandates for more than 800 prevention-related services listed in regulations originally published in 2009. See Agencies Release Regulations Implementing Affordable Care Act Preventive Care Mandates. The Affordable Care Act gives federal authorities the power to expand or modify this list.

Following publication of the original list, the Obama Administration engaged in lengthy discussion considerations about the scope of contraceptive and other women’s health services that would qualify as prevention related services including lengthy discussions and negotiations about mandates to provide contraceptive services viewed as highly controversial by many religious organizations and several other employers. See Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures.

Obama Administration Adds Contraceptive & Other Women’s Health Services To Required Prevention-Related Coverage List Effective 8/1/2012

The Obama Administration moved forward on its promise to add contraceptive services and a broad list of other women’s health services to the list of prevention-related health services that employer-sponsored health plans must cover without cost to employees despite objections from religious organizations and others that the contraception mandate violates the Constitution’s freedom of religion protections.

The Obama Administration’s announcement earlier this year that it intended to move forward with plans to mandate that group health plans — including those of certain employers affiliated with religious organizations to cover contraceptive counseling and other services as prevention-related services has prompted outcry and legal challenges from a broad range of religious organizations and others. See e.g., University of Notre Dame v. Sebelius; Hercules Industries, Inc. v. Sebelius. On July 27, 2012, a Colorado District Court granted a temporary injunction barring enforcement of the contraceptive coverage mandate against a small, Catholic family-owned business challenging the mandate as a violation of the Constitutional religious freedoms of its owners. See Hercules Industries, Inc. v. Sebelius.

While these and other litigants continue to challenge the contraceptive mandates, Obama Administration officials continue to voice their commitment to standby and enforce the contraceptive and other prevention-related services mandates as implemented by current regulation. Employer and other health plan sponsors and fiduciaries that do not wish to risk exposure for violating these mandates should review and update their health plan documents, summary plan descriptions and other communications, and administrative and other procedures as necessary to comply with the applicable requirements of the regulations.

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