Coverage for Contraceptive Services, 47741-47745 [2016-17242]

Download as PDF Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Proposed Rules elsewhere in this issue of the Federal Register]. John Dalrymple, Deputy Commissioner for Services and Enforcement. [FR Doc. 2016–16561 Filed 7–21–16; 8:45 am] BILLING CODE 4830–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 54 DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2590 DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 147 [CMS–9931–NC] Coverage for Contraceptive Services Internal Revenue Service, Department of the Treasury; Employee Benefits Security Administration, Department of Labor; Centers for Medicare & Medicaid Services, Department of Health and Human Services. ACTION: Request for information. AGENCY: This document is a request for information on whether there are alternative ways (other than those offered in current regulations) for eligible organizations that object to providing coverage for contraceptive services on religious grounds to obtain an accommodation, while still ensuring that women enrolled in the organizations’ health plans have access to seamless coverage of the full range of Food and Drug Administrationapproved contraceptives without cost sharing. This information is being solicited in light of the Supreme Court’s opinion in Zubik v. Burwell, 136 S. Ct. 1557 (2016). The Departments of Health and Human Services (HHS), Labor, and the Treasury (collectively, the Departments) invite public comments via this request for information. DATES: Comments must be submitted on or before September 20, 2016. ADDRESSES: In commenting, please refer to file code CMS–9931–NC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission. ehiers on DSK5VPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 14:58 Jul 21, 2016 Jkt 238001 You may submit comments in one of four ways (please choose only one of the ways listed): 1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the ‘‘Submit a comment’’ instructions. 2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS–9931–NC, P.O. Box 8010, Baltimore, MD 21244–8010. Please allow sufficient time for mailed comments to be received before the close of the comment period. 3. By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS–9931–NC, Mail Stop C4–26–05, 7500 Security Boulevard, Baltimore, MD 21244–1850. 4. By hand or courier. Alternatively, you may deliver (by hand or courier) your written comments ONLY to the following addresses prior to the close of the comment period: a. For delivery in Washington, DC— Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445–G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201. (Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.) b. For delivery in Baltimore, MD— Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244–1850. If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786–9994 in advance to schedule your arrival with one of our staff members. Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period. For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: David Mlawsky, Centers for Medicare & Medicaid Services (CMS), Department PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 47741 of Health and Human Services, at (410) 786–1565. Elizabeth Schumacher or Suzanne Adelman, Employee Benefits Security Administration, Department of Labor, at (202) 693–8335. Karen Levin, Internal Revenue Service, Department of the Treasury, at (202) 317–6846. Customer Service Information: Individuals interested in obtaining information from the Department of Labor concerning employment-based health coverage laws may call the EBSA Toll-Free Hotline at 1–866–444–EBSA (3272) or visit the Department of Labor’s Web site (http://www.dol.gov/ebsa). In addition, information from HHS on private health insurance for consumers can be found on the CMS Web site (www.cciio.cms.gov), and information on health reform can be found at http:// www.HealthCare.gov. SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http:// www.regulations.gov. Follow the search instructions on that Web site to view public comments. Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1–800–743–3951. I. Background The Patient Protection and Affordable Care Act (Pub. L. 111–148) was enacted on March 23, 2010. The Health Care and Education Reconciliation Act of 2010 (Pub. L. 111–152) was enacted on March 30, 2010. These statutes are collectively known as the Affordable Care Act. The Affordable Care Act reorganizes, amends, and adds to the provisions of part A of title XXVII of the Public Health Service Act (PHS Act) relating to group health plans and health insurance issuers in the group and individual markets. The Affordable Care Act adds section 715(a)(1) to the Employee Retirement Income Security Act of 1974 (ERISA) and section 9815(a)(1) to the E:\FR\FM\22JYP1.SGM 22JYP1 ehiers on DSK5VPTVN1PROD with PROPOSALS 47742 Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Proposed Rules Internal Revenue Code (Code) to incorporate the provisions of part A of title XXVII of the PHS Act into ERISA and the Code, and to make those provisions applicable to group health plans and health insurance issuers providing health insurance coverage in connection with group health plans. The sections of the PHS Act incorporated into ERISA and the Code are sections 2701 through 2728. Section 2713 of the PHS Act, as added by the Affordable Care Act and incorporated into ERISA and the Code, requires that non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage provide coverage of certain specified preventive services without cost sharing. These preventive services include preventive care and screenings for women provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA). On August 1, 2011, the Departments amended regulations to cover women’s preventive services provided for in HRSA guidelines,1 and HRSA adopted and released such guidelines, which were based on recommendations of the independent organization, the National Academy of Medicine (formerly Institute of Medicine). The preventive services identified in the HRSA guidelines include all Food and Drug Administration (FDA)-approved contraceptives, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider (collectively, contraceptive services).2 The Departments issued regulations that provide an accommodation for eligible organizations that object on religious grounds to providing coverage for contraceptive services.3 Under the accommodation, an eligible organization does not have to contract, arrange, pay, or provide a referral for contraceptive coverage. At the same time, the accommodation generally ensures that women enrolled in the health plan established by the eligible organization, like women enrolled in health plans maintained by other employers, receive contraceptive coverage seamlessly—that is, through the same issuers or third party administrators that provide or administer the rest of their health coverage, and without financial, 1 26 CFR 54.9815–2713, 29 CFR 2590.715–2713, 45 CFR 147.130. 2 The HRSA guidelines exclude services relating to a man’s reproductive capacity, such as vasectomies and condoms. 3 26 CFR 54.9815–2713A, 29 CFR 2590.715– 2713A, 45 CFR 147.131. VerDate Sep<11>2014 14:58 Jul 21, 2016 Jkt 238001 logistical, or administrative obstacles.4 Minimizing such obstacles is essential to achieving the purpose of the Affordable Care Act’s preventive services provision, which seeks to remove barriers to the use of preventive services and to ensure that women receive full and equal health coverage appropriate to their medical needs. Under the Departments’ regulations, an eligible organization may invoke the accommodation by self-certifying its eligibility using a form provided by the Department of Labor, EBSA Form 700, and providing the form to its health insurance issuer (to the extent it has an insured plan) or third party administrator (to the extent it has a selfinsured plan).5 Alternatively, instead of sending the self-certification form to its issuer or third party administrator, the regulations allow an eligible organization to invoke the accommodation by providing certain information to HHS, without using any particular form.6 In Zubik v. Burwell, 136 S. Ct. 1557 (2016), the Supreme Court considered claims by a number of employers that, even with the accommodation provided in the regulations, the contraceptivecoverage requirement violates the Religious Freedom Restoration Act of 1993 (RFRA). Following oral argument, the Court requested supplemental briefing from the parties. The Court’s order noted that under the existing regulations, an objecting employer with an insured plan that seeks to invoke the accommodation by contacting its issuer must use a form of notice provided by the government.7 The Court directed the parties to file supplemental briefs addressing ‘‘whether contraceptive coverage could be provided to [the objecting employers’] employees, through [the employers’] insurance companies, without any such notice.’’ 8 After consideration of the supplemental briefing, the Supreme Court vacated the 4 An accommodation is also available with respect to student health insurance coverage arranged by eligible organizations that are institutions of higher education. 45 CFR 147.131(f). For ease of use, this RFI refers only to ‘‘employers’’ with religious objections to the contraceptivecoverage requirement, but references to employers with respect to insured group health plans should also be considered to include institutions of higher education that are eligible organizations with respect to student health insurance coverage. 5 The EBSA form 700 is available at: https:// www.dol.gov/ebsa/pdf/preventiveserviceseligible organizationcertificationform.pdf 6 A model notice to HHS that eligible organizations may, but are not required to, use is available at: http://www.cms.gov/cciio/resources/ Regulations-and-Guidance/index.html#Prevention. 7 Zubik v. Burwell, Nos. 14–1418 et al., 2016 WL 1203818, at *2 (Mar. 29, 2016). 8 Id. PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 judgments of the courts below and remanded Zubik and several other cases raising parallel RFRA challenges to the accommodation. 136 S. Ct. at 1560– 1561. The Court emphasized that it ‘‘expresse[d] no view on the merits of the cases’’ and, in particular, that it did not ‘‘decide whether [the employers’] religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.’’ Id. at 1560. The Court, however, stated that in light of what it viewed as ‘‘the substantial clarification and refinement in the positions of the parties’’ in their supplemental briefs, the parties ‘‘should be afforded an opportunity to arrive at an approach going forward that accommodates [the objecting employers’] religious exercise while at the same time ensuring that women covered by [the employers’] health plans ‘receive full and equal health coverage, including contraceptive coverage.’’’ Id. (citation omitted). As the government explained in its briefs in Zubik, the Departments continue to believe that the existing accommodation regulations are consistent with RFRA for two independent reasons. First, as eight of the nine courts of appeals to consider the issue have held, the accommodation does not substantially burden objecting employers’ exercise of religion. Second, as some of those courts have also held, the accommodation is the least restrictive means of furthering the government’s compelling interest in ensuring that women receive full and equal health coverage, including contraceptive coverage. Nevertheless, the Departments also are committed to respecting the beliefs of religious employers that object to providing contraceptive coverage, and the Departments have consistently sought to accommodate religious objections to the contraceptive-coverage requirement even where not required to do so by RFRA. Consistent with that approach, the Departments are issuing this Request for Information (RFI) to determine, as contemplated by the Supreme Court’s opinion in Zubik, whether modifications to the existing accommodation procedure could resolve the objections asserted by the plaintiffs in the pending RFRA cases while still ensuring that the affected women seamlessly receive full and equal health coverage, including contraceptive coverage. The Departments are using the RFI procedure because the issues addressed in the supplemental briefing in Zubik affect a wide variety of stakeholders, E:\FR\FM\22JYP1.SGM 22JYP1 Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Proposed Rules including many who are not parties to the cases that were before the Supreme Court. Other employers also have brought RFRA challenges to the accommodation, and their views may differ from the views held by the employers in Zubik and the consolidated cases. In addition, any change to the accommodation could have implications for the rights and obligations of issuers, third party administrators, and women enrolled in health plans established by objecting employers. RFIs are commonly used to solicit public comments on potential rulemaking in a transparent and open way. Information gathered through this RFI will be used to determine whether changes to the current regulations should be made and, if so, to inform the nature of those changes. The Departments welcome comments from all stakeholders. A principal purpose of this RFI is to determine whether there are modifications to the accommodation that would be available under current law and that could resolve the RFRA claims raised by organizations that object to the existing accommodation on religious grounds. The Departments invite all such organizations to submit comments, and request that their submissions include specific responses to the questions posed below.9 II. Solicitation of Comments ehiers on DSK5VPTVN1PROD with PROPOSALS A. Notification to Issuers Without SelfCertification In its request for supplemental briefing in Zubik, the Supreme Court asked the parties to address whether and how ‘‘contraceptive coverage may be obtained by [objecting employers’] employees through [the employers’] insurance companies, but in a way that does not require any involvement of [the employers] beyond their own decision to provide health insurance without contraceptive coverage to their employees.’’ 10 In particular, the Court posited ‘‘a situation in which [objecting 9 Consistent with the Supreme Court’s decision in Zubik, the Departments seek to determine whether changes to the existing accommodation could resolve the pending RFRA claims brought by objecting employers. The Supreme Court separately specified that, while the RFRA litigation remains pending, ‘‘the Government may not impose taxes or penalties on [the plaintiffs] for failure to provide the . . . notice’’ required under the existing accommodation regulations. Zubik, 136 S. Ct. at 1561. At the same time, the Court also emphasized that ‘‘[n]othing in [its] opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by [plaintiffs’] health plans ‘obtain, without cost, the full range of FDA approved contraceptives.’’’ Id. at 1560–1561 (quoting Wheaton College v. Burwell, 134 S. Ct. 2806, 2807 (2014)). As such, those interim matters are not within the scope of this RFI. 10 Zubik, 2016 WL 1203818, at *2. VerDate Sep<11>2014 14:58 Jul 21, 2016 Jkt 238001 employers] would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. [The employers] would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal government, or to their employees. At the same time, [the employers’] insurance compan[ies]— aware that [the employers] are not providing certain contraceptive coverage on religious grounds—would separately notify [the employers’] employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by [the employers] and is not provided through [the employers’] health plan[s].’’ 11 In response, the government explained: For employers with insured plans, the Court described an arrangement very similar to the existing accommodation. The accommodation already relieves [employers with religious objections] of any obligation to provide contraceptive coverage and instead requires insurers to provide coverage separately. The only difference is the way the accommodation is invoked. Currently, an employer that chooses to opt out by notifying its insurer (rather than HHS) must use a written form self-certifying its religious objection and eligibility for the accommodation. The Court’s order posited an alternative procedure in which the employer could opt out by asking an insurer for a policy that excluded contraceptives to which it objects. That request would not need to take any particular form, but the employer and the insurer would be in the same position as after a self-certification: The employer’s obligation to provide contraceptive coverage would be extinguished, and the insurer would instead be required to provide the coverage separately.’’ Gov’t Supp. Brief 2 (citation omitted); see id. 3–7.12 The government explained that because ‘‘[i]nsurers have an independent statutory obligation to provide contraceptive coverage,’’ ‘‘the accommodation for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, 11 Id. government’s supplemental brief is available at https://www.justice.gov/osg/brief/zubikv-burwell-0. The government’s supplemental reply brief is available at https://www.justice.gov/osg/ brief/zubik-v-burwell-1. PO 00000 Frm 00007 together with the rest of their health coverage.’’ Id. at 14–15. The government also noted, however, that the current requirement of a written selfcertification plays an important role in effectuating the accommodation, and therefore cautioned that such a modification could ‘‘impose real costs on the parties whose rights and duties are affected—including objecting employers.’’ Id. at 14; see id. at 8–11 (describing the function of the selfcertification requirement). The Departments seek comments from all interested stakeholders, including all objecting employers, on the procedure for invoking the accommodation described above, including with respect to the following: 1. The Departments ask objecting organizations with insured plans to indicate whether the alternative procedure described above would resolve their RFRA objections to the accommodation. If it would not resolve a particular organization’s RFRA objection, the Departments ask the organization to indicate whether its RFRA objection could be resolved by any procedure(s) or system(s) in which the organization’s issuer provides contraceptive coverage to the women enrolled in the organization’s health plan, and, if so, describe the procedure(s) or system(s) with specificity. 2. The Supreme Court’s supplemental briefing order appears to contemplate that, in requesting insurance coverage that excludes contraceptive coverage, an employer would inform its issuer that it objects to providing contraceptive coverage ‘‘on religious grounds.’’ 13 The Departments ask objecting organizations to indicate whether they would have any RFRA objection to informing their issuers that they object to providing contraceptive coverage ‘‘on religious grounds,’’ or to a further requirement that the request by an eligible organization 14 to its issuer be made in writing, or to a further requirement that the request be made via a particular form. 3. The government’s supplemental brief explained that eliminating the written notification requirement in the existing accommodation could impose additional burdens on objecting employers, issuers, and regulators. Gov’t Supp. Br. 8–10, 14–15. The Departments seek comment on the extent of those burdens and what steps could be taken 13 Zubik, 12 The Fmt 4702 Sfmt 4702 47743 2016 WL 1203818, at *2. eligible organization, which may seek the accommodation based on its sincerely held religious objection to providing contraceptive coverage, is defined at 26 CFR 54.9815–2713A(a), 29 CFR 2590.715–2713A(a), and 45 CFR 147.131(b). 14 An E:\FR\FM\22JYP1.SGM 22JYP1 47744 Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Proposed Rules ehiers on DSK5VPTVN1PROD with PROPOSALS to mitigate them. The Departments ask health insurance issuers, as well as other commenters, to indicate whether it is feasible for issuers to implement the accommodation without the written notification requirement. 4. What impact would the alternative procedure described above have on the ability of women enrolled in group health plans established by objecting employers to receive seamless coverage for contraceptive services? B. Other Approaches With Respect to Insured Plans Described in the Supplemental Briefing In their supplemental brief, the plaintiffs in Zubik and the consolidated cases proposed additional modifications to the existing accommodation for insured plans, beyond those described in the Supreme Court’s supplemental briefing order and discussed above. As in the alternative described above, the Zubik plaintiffs proposed that when an eligible employer with an insured plan requests insurance coverage that excludes contraceptive coverage to which the employer objects on religious grounds, the employer’s issuer should be required to provide the required coverage separately. However, the Zubik plaintiffs further proposed that the separate coverage provided by the issuer should differ from the separate coverage required under the existing accommodation in two respects. First, the Zubik plaintiffs proposed that the issuer be required to offer women the opportunity to enroll in contraceptiveonly insurance policies, rather than the issuer providing separate direct payments for contraceptive services. Second, the Zubik plaintiffs proposed that the affected women should be required to take affirmative steps to enroll in those contraceptive-only policies, rather than being automatically eligible for payments by the issuer for contraceptive services. Pet. Supp. Br. 3–12.15 The Departments seek comments on this approach, including with respect to the following: 1. The Departments ask objecting organizations with insured plans to indicate whether this alternative procedure would resolve their RFRA objections to the accommodation. 2. What impact would this approach have on the ability of women enrolled in group health plans established by 15 Petitioners’ supplemental brief is available at http://www.scotusblog.com/wp-content/uploads/ 2016/04/Non-profits-response-to-Zubik-order-4-1216.pdf. Petitioners’ supplemental reply brief is available at http://www.scotusblog.com/wp-content/ uploads/2016/04/Zubik-order-non-profits-replybrief-4-20-161.pdf. VerDate Sep<11>2014 14:58 Jul 21, 2016 Jkt 238001 objecting employers to receive seamless coverage for contraceptive services? 3. Is this approach feasible for health insurance issuers? 4. Relying on the record developed in the prior rulemaking proceedings, the government’s supplemental reply brief in Zubik explained that contraceptiveonly insurance policies would be inconsistent with state laws regulating insurance and that an affirmative enrollment requirement would impose a barrier to access to preventive services. Gov’t Supp. Reply Br. 3–6. The Departments seek further comment on those issues in this RFI. 5. Are there alternative procedure(s) or systems (without relying on contraceptive-only policies or imposing an affirmative enrollment requirement) that would resolve objecting organizations’ RFRA objection to the accommodation? If so, please describe the procedure(s) or system(s) with specificity. C. Self-Insured Plans The Supreme Court’s supplemental briefing order in Zubik addressed only employers with ‘‘insured plans.’’ 16 In its supplemental brief, the government described the operation of the accommodation for self-insured plans and explained that an alternative process like the one the Court posited for insured plans could not work for the many employers with self-insured plans: If an employer has a self-insured plan, the statutory obligation to provide contraceptive coverage falls only on the plan—there is no insurer with a preexisting duty to provide coverage. Accordingly, to relieve self-insured employers of any obligation to provide contraceptive coverage while still ensuring that the affected women receive coverage without the employer’s involvement, the accommodation establishes a mechanism for the government to designate the employer’s TPA as a ‘plan administrator’ responsible for separately providing the required coverage under [ERISA]. That designation is made by the government, not the employer, and the employer does not fund, control, or have any other involvement with the separate portion of the ERISA plan administered by the TPA. The government’s designation of the TPA must be reflected in a written plan instrument. To satisfy that requirement, the accommodation relies on either (1) a written designation sent by the government to the TPA, which requires the government to know the TPA’s identity, or (2) the self-certification form, which the regulations treat as a plan instrument in which the government designates the TPA as a plan administrator. There is no mechanism for requiring TPAs to provide separate contraceptive coverage without a plan instrument; self-insured employers could not opt out of the PO 00000 16 Zubik, contraceptive-coverage requirement by simply informing their TPAs that they do not want to provide coverage for contraceptives. Gov’t Supp. Br. 16–17 (citations omitted). The Zubik plaintiffs also stated that an arrangement like the one posited in the Supreme Court’s briefing order for insured plans could not work for selfinsured plans. See Pet. Supp. Br. 16–17. Although the Departments have not identified any viable alternative to the existing accommodation for self-insured plans, they seek comment on any possible modifications to the accommodation for self-insured plans, including self-insured church plans that would resolve objecting organizations’ RFRA objections while still providing seamless access to coverage, including with respect to the following: 1. Are any reasonable alternative means available under existing law by which the Departments could ensure that women enrolled in self-insured plans maintained by objecting employers receive separate contraceptive coverage that is not contracted, arranged, paid, or referred for by the objecting organization but that is provided through the same third party administrators that administer the rest of their health benefits? 2. The Departments ask objecting organizations with self-insured plans to indicate whether their RFRA objections to the existing accommodation could be resolved by any alternative procedure or system in which the objecting organization’s third party administrator provides contraceptive coverage to the women enrolled in the organization’s health plan, and, if so, to describe the procedure(s) or system(s) with specificity. III. Collection of Information Requirements This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 2016 WL 1203818, at *2. Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\22JYP1.SGM 22JYP1 Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Proposed Rules Signed at Washington, DC, this 18th day of July, 2016. Victoria A. Judson, Associate Chief Counsel (Tax Exempt and Government Entities), Internal Revenue Service, Department of the Treasury. Signed this 18th day of July, 2016. Robert J. Neis, Benefits Tax Counsel, Department of the Treasury. Signed this 18th day of July, 2016. Phyllis C. Borzi, Assistant Secretary, Employee Benefits Security Administration Department of Labor. Dated: July 14, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services. Approved: July 15, 2016. Sylvia M. Burwell, Secretary, Department of Health and Human Services. [FR Doc. 2016–17242 Filed 7–21–16; 8:45 am] BILLING CODE 4120–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R01–OAR–2015–0306; A–1–FRL– 9949–31–Region 1] Air Plan Approval; Rhode Island; Correction, Administrative and Miscellaneous Revisions Environmental Protection Agency. ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. This SIP revision includes fifteen revised Rhode Island Air Pollution Control Regulations. These regulations have been previously approved into the Rhode Island SIP and ehiers on DSK5VPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 14:58 Jul 21, 2016 Jkt 238001 the revisions to these regulations are mainly administrative in nature, but also include technical corrections and a few substantive changes to several of the rules. In addition, EPA is proposing a correction to the Rhode Island SIP to remove Rhode Island’s odor regulation because it was previously erroneously approved into the SIP. The intended effect of this action is to propose to approve Rhode Island’s fifteen revised regulations into the Rhode Island SIP and correct the Rhode Island SIP by removing Rhode Island’s odor regulation. This action is being taken in accordance with the Clean Air Act. DATES: Written comments must be received on or before August 22, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R01– OAR–2015–0306 at http:// www.regulations.gov, or via email to mcdonnell.ida@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the ‘‘For Further Information Contact’’ section. For the full EPA public comment policy, information about CBI or multimedia PO 00000 Frm 00009 Fmt 4702 Sfmt 9990 47745 submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics and Indoor Programs Unit, Office of Ecosystem Protection, 5 Post Office Square—Suite 100, (Mail code OEP05– 2), Boston, MA 02109–3912, telephone 617–918–1656, fax 617–918–0656, email lancey.susan@epa.gov. SUPPLEMENTARY INFORMATION: In the Rules and Regulations section of this Federal Register, EPA is approving the State’s SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of the rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules and Regulations section of this Federal Register. Dated: July 5, 2016. H. Curtis Spalding, Regional Administrator, EPA New England. [FR Doc. 2016–17183 Filed 7–21–16; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\22JYP1.SGM 22JYP1

Agencies

[Federal Register Volume 81, Number 141 (Friday, July 22, 2016)]
[Proposed Rules]
[Pages 47741-47745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17242]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 54

DEPARTMENT OF LABOR

Employee Benefits Security Administration

29 CFR Part 2590

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 147

[CMS-9931-NC]


Coverage for Contraceptive Services

AGENCY: Internal Revenue Service, Department of the Treasury; Employee 
Benefits Security Administration, Department of Labor; Centers for 
Medicare & Medicaid Services, Department of Health and Human Services.

ACTION: Request for information.

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SUMMARY: This document is a request for information on whether there 
are alternative ways (other than those offered in current regulations) 
for eligible organizations that object to providing coverage for 
contraceptive services on religious grounds to obtain an accommodation, 
while still ensuring that women enrolled in the organizations' health 
plans have access to seamless coverage of the full range of Food and 
Drug Administration-approved contraceptives without cost sharing. This 
information is being solicited in light of the Supreme Court's opinion 
in Zubik v. Burwell, 136 S. Ct. 1557 (2016). The Departments of Health 
and Human Services (HHS), Labor, and the Treasury (collectively, the 
Departments) invite public comments via this request for information.

DATES: Comments must be submitted on or before September 20, 2016.

ADDRESSES: In commenting, please refer to file code CMS-9931-NC. 
Because of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address ONLY: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-9931-NC, P.O. Box 8010, 
Baltimore, MD 21244-8010. Please allow sufficient time for mailed 
comments to be received before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-9931-NC, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    4. By hand or courier. Alternatively, you may deliver (by hand or 
courier) your written comments ONLY to the following addresses prior to 
the close of the comment period:
    a. For delivery in Washington, DC--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Room 445-G, Hubert 
H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 
20201.
    (Because access to the interior of the Hubert H. Humphrey Building 
is not readily available to persons without Federal government 
identification, commenters are encouraged to leave their comments in 
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing 
by stamping in and retaining an extra copy of the comments being 
filed.)
    b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 7500 Security 
Boulevard, Baltimore, MD 21244-1850.
    If you intend to deliver your comments to the Baltimore address, 
call telephone number (410) 786-9994 in advance to schedule your 
arrival with one of our staff members.
    Comments erroneously mailed to the addresses indicated as 
appropriate for hand or courier delivery may be delayed and received 
after the comment period.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: 
    David Mlawsky, Centers for Medicare & Medicaid Services (CMS), 
Department of Health and Human Services, at (410) 786-1565.
    Elizabeth Schumacher or Suzanne Adelman, Employee Benefits Security 
Administration, Department of Labor, at (202) 693-8335.
    Karen Levin, Internal Revenue Service, Department of the Treasury, 
at (202) 317-6846.
    Customer Service Information: Individuals interested in obtaining 
information from the Department of Labor concerning employment-based 
health coverage laws may call the EBSA Toll-Free Hotline at 1-866-444-
EBSA (3272) or visit the Department of Labor's Web site (http://www.dol.gov/ebsa). In addition, information from HHS on private health 
insurance for consumers can be found on the CMS Web site 
(www.cciio.cms.gov), and information on health reform can be found at 
http://www.HealthCare.gov.

SUPPLEMENTARY INFORMATION: 
    Inspection of Public Comments: All comments received before the 
close of the comment period are available for viewing by the public, 
including any personally identifiable or confidential business 
information that is included in a comment. We post all comments 
received before the close of the comment period on the following Web 
site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to 
view public comments.
    Comments received timely will also be available for public 
inspection as they are received, generally beginning approximately 3 
weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 
a.m. to 4 p.m. To schedule an appointment to view public comments, 
phone 1-800-743-3951.

I. Background

    The Patient Protection and Affordable Care Act (Pub. L. 111-148) 
was enacted on March 23, 2010. The Health Care and Education 
Reconciliation Act of 2010 (Pub. L. 111-152) was enacted on March 30, 
2010. These statutes are collectively known as the Affordable Care Act. 
The Affordable Care Act reorganizes, amends, and adds to the provisions 
of part A of title XXVII of the Public Health Service Act (PHS Act) 
relating to group health plans and health insurance issuers in the 
group and individual markets. The Affordable Care Act adds section 
715(a)(1) to the Employee Retirement Income Security Act of 1974 
(ERISA) and section 9815(a)(1) to the

[[Page 47742]]

Internal Revenue Code (Code) to incorporate the provisions of part A of 
title XXVII of the PHS Act into ERISA and the Code, and to make those 
provisions applicable to group health plans and health insurance 
issuers providing health insurance coverage in connection with group 
health plans. The sections of the PHS Act incorporated into ERISA and 
the Code are sections 2701 through 2728.
    Section 2713 of the PHS Act, as added by the Affordable Care Act 
and incorporated into ERISA and the Code, requires that non-
grandfathered group health plans and health insurance issuers offering 
non-grandfathered group or individual health insurance coverage provide 
coverage of certain specified preventive services without cost sharing. 
These preventive services include preventive care and screenings for 
women provided for in comprehensive guidelines supported by the Health 
Resources and Services Administration (HRSA). On August 1, 2011, the 
Departments amended regulations to cover women's preventive services 
provided for in HRSA guidelines,\1\ and HRSA adopted and released such 
guidelines, which were based on recommendations of the independent 
organization, the National Academy of Medicine (formerly Institute of 
Medicine). The preventive services identified in the HRSA guidelines 
include all Food and Drug Administration (FDA)-approved contraceptives, 
sterilization procedures, and patient education and counseling for 
women with reproductive capacity, as prescribed by a health care 
provider (collectively, contraceptive services).\2\
---------------------------------------------------------------------------

    \1\ 26 CFR 54.9815-2713, 29 CFR 2590.715-2713, 45 CFR 147.130.
    \2\ The HRSA guidelines exclude services relating to a man's 
reproductive capacity, such as vasectomies and condoms.
---------------------------------------------------------------------------

    The Departments issued regulations that provide an accommodation 
for eligible organizations that object on religious grounds to 
providing coverage for contraceptive services.\3\ Under the 
accommodation, an eligible organization does not have to contract, 
arrange, pay, or provide a referral for contraceptive coverage. At the 
same time, the accommodation generally ensures that women enrolled in 
the health plan established by the eligible organization, like women 
enrolled in health plans maintained by other employers, receive 
contraceptive coverage seamlessly--that is, through the same issuers or 
third party administrators that provide or administer the rest of their 
health coverage, and without financial, logistical, or administrative 
obstacles.\4\ Minimizing such obstacles is essential to achieving the 
purpose of the Affordable Care Act's preventive services provision, 
which seeks to remove barriers to the use of preventive services and to 
ensure that women receive full and equal health coverage appropriate to 
their medical needs.
---------------------------------------------------------------------------

    \3\ 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, 45 CFR 147.131.
    \4\ An accommodation is also available with respect to student 
health insurance coverage arranged by eligible organizations that 
are institutions of higher education. 45 CFR 147.131(f). For ease of 
use, this RFI refers only to ``employers'' with religious objections 
to the contraceptive-coverage requirement, but references to 
employers with respect to insured group health plans should also be 
considered to include institutions of higher education that are 
eligible organizations with respect to student health insurance 
coverage.
---------------------------------------------------------------------------

    Under the Departments' regulations, an eligible organization may 
invoke the accommodation by self-certifying its eligibility using a 
form provided by the Department of Labor, EBSA Form 700, and providing 
the form to its health insurance issuer (to the extent it has an 
insured plan) or third party administrator (to the extent it has a 
self-insured plan).\5\ Alternatively, instead of sending the self-
certification form to its issuer or third party administrator, the 
regulations allow an eligible organization to invoke the accommodation 
by providing certain information to HHS, without using any particular 
form.\6\
---------------------------------------------------------------------------

    \5\ The EBSA form 700 is available at: https://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf
    \6\ A model notice to HHS that eligible organizations may, but 
are not required to, use is available at: http://www.cms.gov/cciio/resources/Regulations-and-Guidance/index.html#Prevention.
---------------------------------------------------------------------------

    In Zubik v. Burwell, 136 S. Ct. 1557 (2016), the Supreme Court 
considered claims by a number of employers that, even with the 
accommodation provided in the regulations, the contraceptive-coverage 
requirement violates the Religious Freedom Restoration Act of 1993 
(RFRA). Following oral argument, the Court requested supplemental 
briefing from the parties. The Court's order noted that under the 
existing regulations, an objecting employer with an insured plan that 
seeks to invoke the accommodation by contacting its issuer must use a 
form of notice provided by the government.\7\ The Court directed the 
parties to file supplemental briefs addressing ``whether contraceptive 
coverage could be provided to [the objecting employers'] employees, 
through [the employers'] insurance companies, without any such 
notice.'' \8\ After consideration of the supplemental briefing, the 
Supreme Court vacated the judgments of the courts below and remanded 
Zubik and several other cases raising parallel RFRA challenges to the 
accommodation. 136 S. Ct. at 1560-1561. The Court emphasized that it 
``expresse[d] no view on the merits of the cases'' and, in particular, 
that it did not ``decide whether [the employers'] religious exercise 
has been substantially burdened, whether the Government has a 
compelling interest, or whether the current regulations are the least 
restrictive means of serving that interest.'' Id. at 1560. The Court, 
however, stated that in light of what it viewed as ``the substantial 
clarification and refinement in the positions of the parties'' in their 
supplemental briefs, the parties ``should be afforded an opportunity to 
arrive at an approach going forward that accommodates [the objecting 
employers'] religious exercise while at the same time ensuring that 
women covered by [the employers'] health plans `receive full and equal 
health coverage, including contraceptive coverage.''' Id. (citation 
omitted).
---------------------------------------------------------------------------

    \7\ Zubik v. Burwell, Nos. 14-1418 et al., 2016 WL 1203818, at 
*2 (Mar. 29, 2016).
    \8\ Id.
---------------------------------------------------------------------------

    As the government explained in its briefs in Zubik, the Departments 
continue to believe that the existing accommodation regulations are 
consistent with RFRA for two independent reasons. First, as eight of 
the nine courts of appeals to consider the issue have held, the 
accommodation does not substantially burden objecting employers' 
exercise of religion. Second, as some of those courts have also held, 
the accommodation is the least restrictive means of furthering the 
government's compelling interest in ensuring that women receive full 
and equal health coverage, including contraceptive coverage. 
Nevertheless, the Departments also are committed to respecting the 
beliefs of religious employers that object to providing contraceptive 
coverage, and the Departments have consistently sought to accommodate 
religious objections to the contraceptive-coverage requirement even 
where not required to do so by RFRA. Consistent with that approach, the 
Departments are issuing this Request for Information (RFI) to 
determine, as contemplated by the Supreme Court's opinion in Zubik, 
whether modifications to the existing accommodation procedure could 
resolve the objections asserted by the plaintiffs in the pending RFRA 
cases while still ensuring that the affected women seamlessly receive 
full and equal health coverage, including contraceptive coverage.
    The Departments are using the RFI procedure because the issues 
addressed in the supplemental briefing in Zubik affect a wide variety 
of stakeholders,

[[Page 47743]]

including many who are not parties to the cases that were before the 
Supreme Court. Other employers also have brought RFRA challenges to the 
accommodation, and their views may differ from the views held by the 
employers in Zubik and the consolidated cases. In addition, any change 
to the accommodation could have implications for the rights and 
obligations of issuers, third party administrators, and women enrolled 
in health plans established by objecting employers. RFIs are commonly 
used to solicit public comments on potential rulemaking in a 
transparent and open way. Information gathered through this RFI will be 
used to determine whether changes to the current regulations should be 
made and, if so, to inform the nature of those changes. The Departments 
welcome comments from all stakeholders. A principal purpose of this RFI 
is to determine whether there are modifications to the accommodation 
that would be available under current law and that could resolve the 
RFRA claims raised by organizations that object to the existing 
accommodation on religious grounds. The Departments invite all such 
organizations to submit comments, and request that their submissions 
include specific responses to the questions posed below.\9\
---------------------------------------------------------------------------

    \9\ Consistent with the Supreme Court's decision in Zubik, the 
Departments seek to determine whether changes to the existing 
accommodation could resolve the pending RFRA claims brought by 
objecting employers. The Supreme Court separately specified that, 
while the RFRA litigation remains pending, ``the Government may not 
impose taxes or penalties on [the plaintiffs] for failure to provide 
the . . . notice'' required under the existing accommodation 
regulations. Zubik, 136 S. Ct. at 1561. At the same time, the Court 
also emphasized that ``[n]othing in [its] opinion, or in the 
opinions or orders of the courts below, is to affect the ability of 
the Government to ensure that women covered by [plaintiffs'] health 
plans `obtain, without cost, the full range of FDA approved 
contraceptives.''' Id. at 1560-1561 (quoting Wheaton College v. 
Burwell, 134 S. Ct. 2806, 2807 (2014)). As such, those interim 
matters are not within the scope of this RFI.
---------------------------------------------------------------------------

II. Solicitation of Comments

A. Notification to Issuers Without Self-Certification

    In its request for supplemental briefing in Zubik, the Supreme 
Court asked the parties to address whether and how ``contraceptive 
coverage may be obtained by [objecting employers'] employees through 
[the employers'] insurance companies, but in a way that does not 
require any involvement of [the employers] beyond their own decision to 
provide health insurance without contraceptive coverage to their 
employees.'' \10\ In particular, the Court posited ``a situation in 
which [objecting employers] would contract to provide health insurance 
for their employees, and in the course of obtaining such insurance, 
inform their insurance company that they do not want their health plan 
to include contraceptive coverage of the type to which they object on 
religious grounds. [The employers] would have no legal obligation to 
provide such contraceptive coverage, would not pay for such coverage, 
and would not be required to submit any separate notice to their 
insurer, to the Federal government, or to their employees. At the same 
time, [the employers'] insurance compan[ies]--aware that [the 
employers] are not providing certain contraceptive coverage on 
religious grounds--would separately notify [the employers'] employees 
that the insurance company will provide cost-free contraceptive 
coverage, and that such coverage is not paid for by [the employers] and 
is not provided through [the employers'] health plan[s].'' \11\
---------------------------------------------------------------------------

    \10\ Zubik, 2016 WL 1203818, at *2.
    \11\ Id.
---------------------------------------------------------------------------

    In response, the government explained:

    For employers with insured plans, the Court described an 
arrangement very similar to the existing accommodation. The 
accommodation already relieves [employers with religious objections] 
of any obligation to provide contraceptive coverage and instead 
requires insurers to provide coverage separately. The only 
difference is the way the accommodation is invoked. Currently, an 
employer that chooses to opt out by notifying its insurer (rather 
than HHS) must use a written form self-certifying its religious 
objection and eligibility for the accommodation. The Court's order 
posited an alternative procedure in which the employer could opt out 
by asking an insurer for a policy that excluded contraceptives to 
which it objects. That request would not need to take any particular 
form, but the employer and the insurer would be in the same position 
as after a self-certification: The employer's obligation to provide 
contraceptive coverage would be extinguished, and the insurer would 
instead be required to provide the coverage separately.'' Gov't 
Supp. Brief 2 (citation omitted); see id. 3-7.\12\
---------------------------------------------------------------------------

    \12\ The government's supplemental brief is available at https://www.justice.gov/osg/brief/zubik-v-burwell-0. The government's 
supplemental reply brief is available at https://www.justice.gov/osg/brief/zubik-v-burwell-1.

    The government explained that because ``[i]nsurers have an 
independent statutory obligation to provide contraceptive coverage,'' 
``the accommodation for employers with insured plans could be modified 
to operate in the manner posited in the Court's order while still 
ensuring that the affected women receive contraceptive coverage 
seamlessly, together with the rest of their health coverage.'' Id. at 
14-15. The government also noted, however, that the current requirement 
of a written self-certification plays an important role in effectuating 
the accommodation, and therefore cautioned that such a modification 
could ``impose real costs on the parties whose rights and duties are 
affected--including objecting employers.'' Id. at 14; see id. at 8-11 
(describing the function of the self-certification requirement).
    The Departments seek comments from all interested stakeholders, 
including all objecting employers, on the procedure for invoking the 
accommodation described above, including with respect to the following:
    1. The Departments ask objecting organizations with insured plans 
to indicate whether the alternative procedure described above would 
resolve their RFRA objections to the accommodation. If it would not 
resolve a particular organization's RFRA objection, the Departments ask 
the organization to indicate whether its RFRA objection could be 
resolved by any procedure(s) or system(s) in which the organization's 
issuer provides contraceptive coverage to the women enrolled in the 
organization's health plan, and, if so, describe the procedure(s) or 
system(s) with specificity.
    2. The Supreme Court's supplemental briefing order appears to 
contemplate that, in requesting insurance coverage that excludes 
contraceptive coverage, an employer would inform its issuer that it 
objects to providing contraceptive coverage ``on religious grounds.'' 
\13\ The Departments ask objecting organizations to indicate whether 
they would have any RFRA objection to informing their issuers that they 
object to providing contraceptive coverage ``on religious grounds,'' or 
to a further requirement that the request by an eligible organization 
\14\ to its issuer be made in writing, or to a further requirement that 
the request be made via a particular form.
---------------------------------------------------------------------------

    \13\ Zubik, 2016 WL 1203818, at *2.
    \14\ An eligible organization, which may seek the accommodation 
based on its sincerely held religious objection to providing 
contraceptive coverage, is defined at 26 CFR 54.9815-2713A(a), 29 
CFR 2590.715-2713A(a), and 45 CFR 147.131(b).
---------------------------------------------------------------------------

    3. The government's supplemental brief explained that eliminating 
the written notification requirement in the existing accommodation 
could impose additional burdens on objecting employers, issuers, and 
regulators. Gov't Supp. Br. 8-10, 14-15. The Departments seek comment 
on the extent of those burdens and what steps could be taken

[[Page 47744]]

to mitigate them. The Departments ask health insurance issuers, as well 
as other commenters, to indicate whether it is feasible for issuers to 
implement the accommodation without the written notification 
requirement.
    4. What impact would the alternative procedure described above have 
on the ability of women enrolled in group health plans established by 
objecting employers to receive seamless coverage for contraceptive 
services?

B. Other Approaches With Respect to Insured Plans Described in the 
Supplemental Briefing

    In their supplemental brief, the plaintiffs in Zubik and the 
consolidated cases proposed additional modifications to the existing 
accommodation for insured plans, beyond those described in the Supreme 
Court's supplemental briefing order and discussed above. As in the 
alternative described above, the Zubik plaintiffs proposed that when an 
eligible employer with an insured plan requests insurance coverage that 
excludes contraceptive coverage to which the employer objects on 
religious grounds, the employer's issuer should be required to provide 
the required coverage separately. However, the Zubik plaintiffs further 
proposed that the separate coverage provided by the issuer should 
differ from the separate coverage required under the existing 
accommodation in two respects. First, the Zubik plaintiffs proposed 
that the issuer be required to offer women the opportunity to enroll in 
contraceptive-only insurance policies, rather than the issuer providing 
separate direct payments for contraceptive services. Second, the Zubik 
plaintiffs proposed that the affected women should be required to take 
affirmative steps to enroll in those contraceptive-only policies, 
rather than being automatically eligible for payments by the issuer for 
contraceptive services. Pet. Supp. Br. 3-12.\15\
---------------------------------------------------------------------------

    \15\ Petitioners' supplemental brief is available at http://www.scotusblog.com/wp-content/uploads/2016/04/Non-profits-response-to-Zubik-order-4-12-16.pdf. Petitioners' supplemental reply brief is 
available at http://www.scotusblog.com/wp-content/uploads/2016/04/Zubik-order-non-profits-reply-brief-4-20-161.pdf.
---------------------------------------------------------------------------

    The Departments seek comments on this approach, including with 
respect to the following:
    1. The Departments ask objecting organizations with insured plans 
to indicate whether this alternative procedure would resolve their RFRA 
objections to the accommodation.
    2. What impact would this approach have on the ability of women 
enrolled in group health plans established by objecting employers to 
receive seamless coverage for contraceptive services?
    3. Is this approach feasible for health insurance issuers?
    4. Relying on the record developed in the prior rulemaking 
proceedings, the government's supplemental reply brief in Zubik 
explained that contraceptive-only insurance policies would be 
inconsistent with state laws regulating insurance and that an 
affirmative enrollment requirement would impose a barrier to access to 
preventive services. Gov't Supp. Reply Br. 3-6. The Departments seek 
further comment on those issues in this RFI.
    5. Are there alternative procedure(s) or systems (without relying 
on contraceptive-only policies or imposing an affirmative enrollment 
requirement) that would resolve objecting organizations' RFRA objection 
to the accommodation? If so, please describe the procedure(s) or 
system(s) with specificity.

C. Self-Insured Plans

    The Supreme Court's supplemental briefing order in Zubik addressed 
only employers with ``insured plans.'' \16\ In its supplemental brief, 
the government described the operation of the accommodation for self-
insured plans and explained that an alternative process like the one 
the Court posited for insured plans could not work for the many 
employers with self-insured plans:
---------------------------------------------------------------------------

    \16\ Zubik, 2016 WL 1203818, at *2.

    If an employer has a self-insured plan, the statutory obligation 
to provide contraceptive coverage falls only on the plan--there is 
no insurer with a preexisting duty to provide coverage. Accordingly, 
to relieve self-insured employers of any obligation to provide 
contraceptive coverage while still ensuring that the affected women 
receive coverage without the employer's involvement, the 
accommodation establishes a mechanism for the government to 
designate the employer's TPA as a `plan administrator' responsible 
for separately providing the required coverage under [ERISA]. That 
designation is made by the government, not the employer, and the 
employer does not fund, control, or have any other involvement with 
the separate portion of the ERISA plan administered by the TPA.
    The government's designation of the TPA must be reflected in a 
written plan instrument. To satisfy that requirement, the 
accommodation relies on either (1) a written designation sent by the 
government to the TPA, which requires the government to know the 
TPA's identity, or (2) the self-certification form, which the 
regulations treat as a plan instrument in which the government 
designates the TPA as a plan administrator. There is no mechanism 
for requiring TPAs to provide separate contraceptive coverage 
without a plan instrument; self-insured employers could not opt out 
of the contraceptive-coverage requirement by simply informing their 
TPAs that they do not want to provide coverage for contraceptives. 
Gov't Supp. Br. 16-17 (citations omitted).

The Zubik plaintiffs also stated that an arrangement like the one 
posited in the Supreme Court's briefing order for insured plans could 
not work for self-insured plans. See Pet. Supp. Br. 16-17.
    Although the Departments have not identified any viable alternative 
to the existing accommodation for self-insured plans, they seek comment 
on any possible modifications to the accommodation for self-insured 
plans, including self-insured church plans that would resolve objecting 
organizations' RFRA objections while still providing seamless access to 
coverage, including with respect to the following:
    1. Are any reasonable alternative means available under existing 
law by which the Departments could ensure that women enrolled in self-
insured plans maintained by objecting employers receive separate 
contraceptive coverage that is not contracted, arranged, paid, or 
referred for by the objecting organization but that is provided through 
the same third party administrators that administer the rest of their 
health benefits?
    2. The Departments ask objecting organizations with self-insured 
plans to indicate whether their RFRA objections to the existing 
accommodation could be resolved by any alternative procedure or system 
in which the objecting organization's third party administrator 
provides contraceptive coverage to the women enrolled in the 
organization's health plan, and, if so, to describe the procedure(s) or 
system(s) with specificity.

III. Collection of Information Requirements

    This document does not impose information collection requirements, 
that is, reporting, recordkeeping or third-party disclosure 
requirements. Consequently, it need not be reviewed by the Office of 
Management and Budget under the authority of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.).


[[Page 47745]]


Signed at Washington, DC, this 18th day of July, 2016.
Victoria A. Judson,
Associate Chief Counsel (Tax Exempt and Government Entities), Internal 
Revenue Service, Department of the Treasury.
    Signed this 18th day of July, 2016.
Robert J. Neis,
Benefits Tax Counsel, Department of the Treasury.
    Signed this 18th day of July, 2016.
Phyllis C. Borzi,
Assistant Secretary, Employee Benefits Security Administration 
Department of Labor.
    Dated: July 14, 2016.
Andrew M. Slavitt,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: July 15, 2016.
Sylvia M. Burwell,
Secretary, Department of Health and Human Services.
[FR Doc. 2016-17242 Filed 7-21-16; 8:45 am]
 BILLING CODE 4120-01-P