HHS has updated its enforcement safe harbor relating to required contraceptive coverage and non-profit organizations that object to such coverage for religious reasons. The updated safe harbor clarifies three items:
- The safe harbor is available to non-profit organizations with religious objections to some but not all contraceptive coverage.
- Organizations that took some action as of February 10, 2012 that was intended to limit or exclude contraceptive coverage but that was unsuccessful are not, solely for that reason, precluded from relying on the safe harbor.
- Organizations that are not sure whether they qualify for the broader religious-employer exemption may utilize the safe harbor without prejudicing their ability to rely on the religious-employer exemption in the future.
With regard to item 1, the specific language of the revised notice says that since February 10, 2012, the plan must have "consistently not provided all or the same subset of the contraceptive coverage otherwise required at any point . . . ." Although this language will not win any awards for clarity, it appears to mean that the safe harbor is not an all-or-nothing rule. An employer may be able to offer some types of contraceptive coverage but exclude others on religious grounds and remain within the safe harbor.
With regard to item 2, the guidance does not provide any examples of situations where, despite its best efforts, an employer might be unable to exclude contraceptive coverage. Perhaps it contemplates a case such as one where the employer directs an insurance carrier to cease providing the contraceptive coverage and the carrier refuses to comply.
For background and prior coverage of the requirement to provide women's preventive-care services (including contraception) in a non-grandfathered health plan, see here and here.