New regulations issued in August, part of the federal health care reform law, will require employers’ health benefits plans to cover several women’s preventive care services – including contraception – for health plans starting next year.
The eight new must-cover services were specified by the U.S. Department of Health and Human Services as part of the Federal Affordable Care Act, said John Barlament, a partner at Quarles & Brady LLP in Milwaukee. Some of the law’s regulations went into effect last year, while several more are due over the next few years.
Health plans starting on or after Aug. 1, 2012, must cover annual well-woman visits, breastfeeding support, supplies and counseling, screening for gestational diabetes, HPV testing, counseling for sexually transmitted infections, counseling and screening for HIV, screening and counseling for interpersonal and domestic violence and contraceptive methods and counseling.
The services must be covered by first dollar, meaning there is no deductible, co-payment or fee charged to the patient. Some preventive care regulations were released last year, and included permission for HHS and other agencies to issue additional rules.
These eight new preventive services were recommended by HHS under the law’s permissions.
“It’s not as urgent or as imminent as what we saw last year,” Barlament said. “(But) clearly, it’s going to increase health plan costs.”
But there are some exemptions.
The rule only applies to “non-grandfathered” plans. Grandfathered plans are those that existed already and have not significantly changed since the law was passed on March 23, 2010.
Religious organizations that morally oppose contraceptives are also exempt from the regulations, but the law’s definition of “religious organization” is fairly narrow, Barlament said.
Those employers that are religious and only employ people of the same religion and beliefs are included in the exemption, but if any employee does not ascribe to that religion, the organization doesn’t qualify, he said.
“If they are a religious employer, then they don’t have to provide coverage for contraceptive methods and counseling,” Barlament said, though they will need to cover the other seven services.
This definition covers many churches, but would not apply to most schools or other organizations that have a religious affiliation, many of whom do not cover prescription contraceptives in their current health plans for moral reasons. It’s caused some controversy about the federal regulations, with several Catholic universities expressing frustration over the law.
Last month, Health and Human Services Secretary Kathleen Sebelius agreed to revisit the issue and consider broadening the definition of religious organization.
Another point to consider, Barlament said, is how these regulations apply to male employees.
While the statute enacting the new regulations says these services must be provided to women, title VII of the Civil Rights Act of 1964 says employers can’t discriminate on the basis of gender.
“The problem that an employer might have is when they put these benefits into their health plan, if they only make them available to women, they might be discriminating against men who have the same needs,” Barlament said.
While some tenets of the law, such as pregnancy services and breast exams, do not apply to men, screening and counseling for sexually transmitted infection, as well as domestic violence counseling, could be extended to men.
The law’s women-only language hasn’t been challenged yet, but that’s likely because it hasn’t taken effect, Barlament said.
“Likely there will be complaints when it goes into effect,” he said. “It’s a little bit of a trap for the unwary employer.”
