Con­tra­cep­tion cov­er­age must be dis­closed

Modern Healthcare - - NEWS - By Joe Carl­son

If closely held com­pa­nies choose not to pro­vide con­tra­cep­tive cov­er­age for em­ploy­ees, they can’t do so in se­cret.

The U.S. Depart­ment of La­bor an­nounced last week that in the wake of the U.S. Supreme Court de­ci­sion in Bur­well v. Hobby Lobby Stores, em­ploy­ers must for­mally no­tify work­ers if they re­move birth con­trol from the health cov­er­age they pro­vide. The change comes as Congress ap­pears dead­locked on a Demo­cratic-spon­sored bill to re­store the Pa­tient Pro­tec­tion and Af­ford­able Care Act’s re­quire­ment for em­ploy­ers to cover con­tra­cep­tives.

“We are mak­ing clear that if a cor­po­ra­tion like Hobby Lobby drops cov­er­age of con­tra­cep­tive ser­vices from its health plan, it must do so in the light of day by let­ting its work­ers and their fam­i­lies know,” a se­nior Obama ad­min­is­tra­tion of­fi­cial said.

The La­bor Depart­ment rule says com­pa­nies have up to 60 days to tell em­ploy­ees af­ter mak­ing such a change.

In its 5-4 rul­ing June 30, the Supreme Court held that “closely held” cor­po­ra­tions can ex­er­cise re­li­gious be­liefs. That meant the Af­ford­able Care Act can­not force those com­pa­nies to pro­vide all forms of Food and Drug Ad­min­is­tra­tionap­proved con­tra­cep­tives.

The court’s de­ci­sion left many unan­swered ques­tions, in­clud­ing whether cuts to birth-con­trol ser­vices would have to be an­nounced to em­ploy­ees. “You don’t want any­one go­ing to fill a pre­scrip­tion and then find­ing out at the phar­macy counter that this is no longer cov­ered un­der the plan,” said Amy Gor­don, a part­ner in ben­e­fits law at McDer­mott Will and Emery in Chicago.

Gor­don said she has al­ready been ap­proached by com­pa­nies that have de­cided they fit the def­i­ni­tion of a “closely held” com­pany and want to can­cel cov­er­age for some or all of the 20 forms of FDA-ap­proved birth con- trol. The La­bor Depart­ment post­ing said such changes would be con­sid­ered “ma­te­rial re­duc­tions in cov­ered ser­vices,” which must be dis­closed. The Hobby Lobby case tar­geted only four forms of birth con­trol, but law­suits chal­leng­ing re­quire­ments to cover all forms of birth con­trol are still pend­ing in court.

At least 28 states have laws on the books that re­quire health plans to cover the full range of con­tra­cep­tive drugs and de­vices if they of­fer pre­scrip­tion drugs in their plans, ac­cord­ing to the Guttmacher In­sti­tute, a not-for-profit or­ga­ni­za­tion that works to ad­vance re­pro­duc­tive rights and health.

Those laws re­main in place be­cause the Hobby Lobby de­ci­sion ap­plied only to the federal reg­u­la­tion, le­gal ex­perts say. But it’s not clear if com­pa­nies that claim re­li­gious ob­jec­tions will fol­low them.

“You don’t want any­one go­ing to fill a pre­scrip­tion and then find­ing out at the phar­macy counter that this is no longer cov­ered un­der the plan.” AMY GOR­DON PART­NER IN BEN­E­FITS LAW MCDER­MOTT WILL AND EMERY

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