Temporary enforcement safe harbor under contraceptive services mandate clarified

Sept. 19, 2012

The Center for Consumer Information and Insurance Oversight has revised its Feb. 10, 2012, bulletin regarding the one-year enforcement safe harbor available under the Affordable Care Act's contraceptive mandate. The safe harbor allows nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, to delay complying with the mandate until Aug. 1, 2013. 

The general qualifications and requirements for a nonprofit organization to qualify for the temporary enforcement safe harbor are described in a previous Reform Alert.

There are several updates in the most recent bulletin: 

• The safe harbor is available to nonprofit groups with religious objections to some, but not all contraceptive methods. If from Feb. 10, 2012, and onward, a group consistently did not cover all or the same subset of the contraceptive coverage required under the Affordable Care Act, it can qualify for the safe harbor. 

For example, a nonprofit organization that on and after Feb. 10 consistently covered FDA-approved contraceptive methods (but not sterilization procedures) can qualify for the safe harbor. 

• If a religious nonprofit organization covered contraceptives on Feb. 10, but still wants to qualify for the safe harbor, it must certify that it took some action before Feb. 10 to try to exclude or limit contraceptive coverage because of its religious beliefs, but that the plan covered contraceptives on Feb. 10, despite such action. Organizations are not required to describe that action, and the reissued bulletin does not provide examples. 
• Nonprofit organizations that are uncertain whether they qualify for the religious employer exemption may invoke the safe harbor without prejudice. Thus, invoking the temporary enforcement safe harbor would not preclude the organization from later invoking the exemption, if eligible.

Please note that this pertains to groups that are uncertain of whether they qualify for an exemption — as opposed to a safe harbor — and does not apply to a group that does not know if it qualifies for either the exemption or safe harbor. 

The reissued bulletin does not require organizations that have already completed the certification or issued the notice from the Feb. 10 bulletin to recertify or reissue the notice.

Where can I find more information?

For more information, please go to the Center for Consumer Information and Insurance Oversight's bulletin from Aug. 15 (PDF).

The information on this website is based on BCBSM's review of the national health care reform legislation and is not intended to impart legal advice. Interpretations of the reform legislation vary, and efforts will be made to present and update accurate information. This overview is intended as an educational tool only and does not replace a more rigorous review of the law's applicability to individual circumstances and attendant legal counsel and should not be relied upon as legal or compliance advice. Analysis is ongoing and additional guidance is also anticipated from the Department of Health and Human Services. Additionally, some reform regulations may differ for particular members enrolled in certain programs such as the Federal Employee Program, and those members are encouraged to consult with their benefit administrators for specific details.