Agencies Plan Changes to Contraceptive Coverage Rules
On Aug. 16, 2021, the Departments of Health and Human Services (HHS), Labor (DOL) and the Treasury (Departments) issued a frequently asked question (FAQ) regarding enforcement of the contraceptive coverage mandate under the Affordable Care Act (ACA).
This FAQ indicates that the Departments intend to amend existing religious and moral exemptions to the contraceptive coverage mandate in light of recent litigation.
Contraceptive Mandate
The ACA requires non-grandfathered health plans to cover certain women’s preventive health services without cost sharing, including all FDA-approved contraceptives.
Religious exemptions apply to certain churches, houses of worship, and other church-affiliated institutions, allowing them to choose not to contract, arrange, pay or refer for any contraceptive coverage.
On Nov. 15, 2018, the Departments published final regulations that expanded the exemptions and accommodations to the contraceptive mandate to apply to any entities with religious or moral objections to the contraceptive coverage requirement.
On July 8, 2020, the U.S. Supreme Court upheld these regulations as a valid exercise of power under the Trump administration.
FAQ Guidance
The FAQ indicates that the Departments intend to issue regulations within six months to amend the 2018 final regulations. The FAQ does not provide any additional detail or specify the types of changes that may be made.
Additional FAQs on the ARPA COBRA Subsidy
On July 26, 2021, the IRS issued Notice 2021-46, providing additional guidance on the application of the American Rescue Plan Act (ARPA) subsidy for continuation health coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) in the form of 11 questions and answers.
The Notice expands on prior guidance issued on May 18, 2021.
Background
The ARPA subsidy covers 100% of COBRA and state mini-COBRA premiums from April 1–Sept. 30, 2021, for certain assistance-eligible individuals whose work hours were reduced or whose employment was involuntarily terminated. The subsidy is funded via a tax credit provided to employers, insurers or group health plans, according to the terms of the statute.
Q&A Topics
The questions addressed include:
- Subsidy availability to individuals eligible for an extension who had not elected it;
- Whether subsidies for vision or dental-only coverage ends due to eligibility for other coverage that does not include vision or dental benefits;
- Subsidy availability under a state statute that limits continuation coverage to government employees;
- Whether employers may claim the tax credit if the Small Business Health Options Program (SHOP) Exchange requires employers to pay COBRA premiums; and
- Which party may claim the tax credit in situations involving parties other than an insurer or former common law employer providing the COBRA coverage.
The American Rescue Plan Act (ARPA) provides COBRA premium assistance to eligible individuals and imposes notice requirements on health plans, including a requirement to notify eligible individuals about when their premium assistance ends.
The notice of premium subsidy expiration must be provided during the 45 - 15-day period before an individual’s subsidy expires. This means that, for individuals whose subsidy is expiring due to the end of the subsidy period, the notice must generally be provided from Aug. 16, 2021, to Sept. 15, 2021. Otherwise, the due date will depend on when an individual’s maximum COBRA coverage period ends.
Plans are not required to issue an expiration notice to individuals whose subsidy is expiring because they became eligible for other group health plan coverage or Medicare.
Pfizer-BioNTech Vaccine Fully Approved by FDA
On Monday, Aug. 23, 2021, the Food and Drug Administration (FDA) gave full approval to the Pfizer-BioNTech coronavirus vaccine.
It is the first full approval of any coronavirus vaccine in the United States. The other vaccines, Moderna and Johnson & Johnson, are still available under emergency use authorization (EUA) granted by the FDA. The Moderna vaccine is currently under review for full approval, and the Johnson & Johnson vaccine is expected to begin the process soon.
"The Pfizer-BioNTech vaccine is fully approved for individuals aged 16 and older. The vaccine also continues to be available under the EUA for children ages 12 to 15 and for the administration of a third dose in certain immunocompromised individuals.
“While millions of people have already safely received COVID-19 vaccines, we recognize that for some, the FDA approval of a vaccine may now instill additional confidence to get vaccinated.”
- Dr. Janet Woodcock, the acting FDA commissioner
The approval comes as the coronavirus Delta variant continues to spread across the United States. Federal and state governments have been issuing renewed guidance as a way to rein in the infections, including implementing stringent mask-wearing requirements.
What’s Next?
Authorizing the Pfizer-BioNTech vaccine is expected to open the floodgates for employers considering their own vaccine requirements. Many colleges, hospitals, corporations and even the federal government have announced tentative plans to require proof of vaccination as a condition of employment. United Airlines, for example, recently announced they will require vaccine proof among their employees. Other businesses are using vaccine cards to verify whether patrons need to wear face masks.
It is unclear how many organizations will require vaccination among employees in the near future, but employers should continue to monitor the situation as it evolves. We will be sure to keep you up to date on any new developments.
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