Proposed Rules for Contraceptive Services

The Affordable Care Act (ACA) requires non-grandfathered health plans to cover contraceptives in 18 FDA-defined categories with no cost sharing.  This mandate has a long and politically contentious history, resulting in numerous lawsuits and four appeals to the U.S. Supreme Court.

Even in light of Supreme Court cases in 2014 (Burwell v Hobby Lobby) and 2016 (Zubik v Burwell), only churches and their integrated auxiliaries were outright exempt from the mandate the first few years it was in effect.

Under the ACA, religious non-profits objecting to some or all of the mandate were required to navigate a formal accommodation process whereby they notify their insurer/TPA (or HHS) of the parts of the contraceptive mandate to which they object. Subsequently, the insurer/TPA could then provide the coverage by other means to affected employees.


Later in 2014, after the Hobby Lobby decision, closely held for profit employers gained access to the accommodation process as well.

Further, in 2018, the Trump administration issued rules that extended exemption to a much broader list of qualifying employers with sincerely held religious beliefs or moral convictions and made accommodation an optional process.  Those 2018 final rules have continued to this day, having been upheld 7-2 in the Supreme Court decision: Little Sisters of the Poor v Pennsylvania on July 8, 2020.

Most recently, federal regulators have announced a proposed rule with new ideas and are accepting public comment through April 2, 2023.  A fact sheet outlines the proposal, consisting of two major parts:

  • First, they are proposing to eliminate the exemption based on moral convictions.
    • Regulators stated “there have not been a large number of entities that have expressed a desire for an exemption based on a non-religious moral objection.”
    • They also noted the Religious Freedom Restoration Act (RFRA) does not require this.
  • Second, they are proposing a new way to accommodate individuals whose plan excludes one or more contraceptives for religious reasons.
    • The previous accommodation process would remain available but is not “required” of employers with sincerely held religious beliefs.
    • A second option creates a new “individual contraceptive arrangement” whereby willing health care providers or pharmacies could be reimbursed through an arrangement with an Exchange insurer, which in turn would seek an Exchange user fee adjustment.
    • The goal of this proposed new option would be to balance the religious rights of certain employers who object to participating in the accommodation process with the ACA’s goal of individual access to no-cost contraceptive health care.
    • Notably, the proposed rule doesn’t include providing an individual contraceptive arrangement to those enrolled in grandfathered plans which might not cover all contraceptives and/or may impose a cost to plan participants. Public comment is being accepted which may alter the language prior to the release of the final rule.
    • They also “seek comment on adequate ways to ensure individuals are aware of the individual contraceptive arrangement, can learn if they are eligible, and can find participating providers to access contraceptive services at no cost.”

Employers interested in providing public comment can click the proposed rule link above.  We will keep employers informed when a final rule is issued.

About Michelle Cammayo, Compliance National Practice Leader, Employee Benefits

Michelle Cammayo has close to 20 years of Employee Benefits experience specializing in all lines of health and welfare benefits. Today, Michelle works closely with clients and partners to provide guidance in areas of the law including ERISA, HIPAA, COBRA, FMLA and PPACA. She is also the IMA National Practice Leader for Compliance and endeavors to ensure IMA helps its clients manage and eliminate risk in the most effective manner. She is passionate about educating others and her passion for this shined in the COVID era where Michelle conducted weekly and then monthly webinars providing guidance to employers. Her podcast, Cammayo’s Compliance Talk, has gained popularity in the last three years to become a favorite amongst our clients. She also contributes regularly to our Blog and has authored several articles for industry-related newsletters. Michelle’s consultative approach with employers provides practical advice as employers endeavor to be compliant.

Subscribe to the Bolton Blog