1 
FAQ A A C A
S  BOUT  FFORDABLE  ARE  CT 
I P 36  
MPLEMENTATION  ART   
U.S.  Department of Labor 
Employee Benefits Security Administration 
January 9, 2017  
 
Set out below is an additional Frequently Asked Question (FAQ) regarding implementation of the 
Affordable Care Act.  This FAQ has been prepared jointly by the Departments of Labor (DOL), Health 
and Human Services (HHS), and the Treasury (collectively, the Departments).  Like previously issued 
FAQs (available at www.dol.gov/ebsa/healthreform/index.html and www.cms.gov/cciio/resources/fact-sheets-
and-faqs/index.html), this FAQ answers a question from stakeholders to help people understand the 
law and benefit from it, as intended.   
 
COVERAGE OF PREVENTIVE SERVICES 
 
Section 2713 of the Public Health Service Act (PHS Act), as added by the Affordable Care Act and 
incorporated into the Employee Retirement Income Security Act (ERISA) and the Internal Revenue 
Code (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.   
 
As originally drafted, the bill that became the Affordable Care Act would not have covered additional 
preventive services that many womens health advocates and medical professionals believe are 
critically important to meeting womens unique health needs.  155 Cong.  Rec.  28,841 (2009) (Sen.  
Boxer).  To address that concern, the Senate adopted a Womens Health Amendment, adding a new 
category of preventive services specific to womens health.  This provision requires coverage without 
cost sharing of preventive care and screenings for women provided for in comprehensive guidelines 
supported by the Health Resources and Services Administration (HRSA).  Supporters of the Womens 
Health Amendment emphasized that it would reduce unintended pregnancies by ensuring that 
women receive coverage for contraceptive services without cost-sharing.  155 Cong.  Rec.  at 29,768 
(Sen.  Durbin).1    
 
On August 1, 2011, the Departments issued amended regulations requiring coverage of womens 
preventive services provided for in the HRSA guidelines,2 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).3  The preventive services identified in the HRSA 
guidelines include all Food and Drug Administration (FDA)-approved contraceptives, sterilization 
                                                           
1  See also, e.g., 155 Cong. Rec. at 28,841 (Sen. Boxer) (family planning services); id. at 28,843 (Sen. Gillibrand) (family 
planning); id. at 28,844 (Sen. Mikulski) (same); id. at 28,869 (Sen. Franken) (contraception); id. at 29,070 (Sen. 
Feinstein) (family planning services); id. at 29,307 (Sen. Murray) (same). 
2  26 CFR 54.9815-2713, 29 CFR 2590.715-2713, 45 CFR 147.130. 
3  The 2011 amended regulations were issued and effective on August 1, 2011, and published on August 3, 2011 (76 FR 
46621). 
 
  2 
procedures, and patient education and counseling for women with reproductive capacity, as 
prescribed by a health care provider (collectively, contraceptive services).4  Under the regulations 
issued in August 2011 and the contemporaneously issued HRSA guidelines, group health plans of 
religious employers (organizations that are organized and operate as nonprofit entities and are 
referred to in section 6033(a)(3)(A)(i) or (iii) of the Code) are exempt from the requirement to provide 
contraceptive coverage.  That exemption reflects the longstanding governmental recognition of a 
particular sphere of autonomy for houses of worship.  80 FR 41318, 41325 (July 15, 2015); see 26 
U.S.C.  6033(a)(3)(A)(i) or (iii) (referring to churches, their integrated auxiliaries, conventions or 
associations of churches, and the exclusively religious activities of any religious order). 
 
Subsequently, on July 2, 2013, the Departments published regulations that provide an 
accommodation for eligible organizations5 that object on religious grounds to providing coverage for 
contraceptive services, but are not eligible for the exemption for religious employers (78 FR 39870).6  
Under the accommodation, an eligible organization is not required 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 health 
coverage furnished by the eligible organization, and without financial, logistical, or administrative 
obstacles.7  Minimizing such obstacles is essential to achieving the purpose of the Affordable Care 
Acts 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. 
 
In Burwell v.  Hobby Lobby Stores, Inc., 134 S.  Ct.  2751 (2014), which addressed claims brought 
under the Religious Freedom Restoration Act (RFRA), the Supreme Court held that the contraceptive-
coverage requirement substantially burdened the religious exercise of the closely held for-profit 
corporations that had religious objections to providing contraceptive coverage, and that the 
accommodation was a less restrictive means of providing coverage to their employees.  In light of the 
Hobby Lobby decision, the Departments extended the accommodation to closely held for-profit 
entities.8 
 
                                                           
4  On December 20, 2016, HRSA updated the womens preventive services guidelines, which go into effect for non-
grandfathered group health plans and health insurance coverage for plan years (in the individual market, policy years) 
beginning on or after December 20, 2017.  The HRSA guidelines exclude services relating to a mans reproductive 
capacity, such as vasectomies and male condoms.  
5  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), 
6  26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, 45 CFR 147.131. 
7  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 FAQ 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. 
8  26 CFR 54.9815-2713A(b)(2)(ii); 29 CFR 2590.715-2713A(b)(2)(ii); 45 CFR. 147.131(b)(2)(ii). 
  3 
Under the accommodation, an eligible organization that objects to providing contraceptive coverage 
for religious reasons may either: 
 
(1) self-certify its objection 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) using a form provided by the 
Department of Labor (EBSA Form 700);9 or  
 
(2) self-certify its objection and provide certain information to HHS 
without using any particular form.10      
 
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 RFRA.  Following oral argument, the Court issued an order requesting 
supplemental briefing from the parties.  The Courts 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 written notice stating that the employer objects on religious grounds to 
providing contraceptive coverage.11  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.12  After 
consideration of the supplemental briefing, the Supreme Court vacated the judgments of the lower 
courts 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).13  
 
                                                           
9  The EBSA Form 700 serves as a certification that the organization is an eligible organization (as described in 26 CFR 
54.9815-2713A(a), 29 CFR 2590.715-2713A(a), and 45 CFR 147.131(b)) that has a religious objection to providing 
coverage for some or all of any contraceptive services that would otherwise be required to be covered. The EBSA Form 
700 is available at: https://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf. 
10  A model notice to HHS that eligible organizations may use, but are not required to use, is available at: 
http://www.cms.gov/cciio/resources/Regulations-and-Guidance/index.html#Prevention. 
11  Zubik v. Burwell, Nos. 14-1418 et al., 2016 WL 1203818, at *2 (Mar. 29, 2016). 
12  Id. 
13  The Supreme Court 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)).   
  4 
On July 22, 2016, the Departments published a request for information (RFI) (81 FR 47741) seeking 
input from interested parties to determine, as contemplated by the Supreme Courts 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 
receive full and equal health coverage, including contraceptive coverage.   
 
The Departments explained that they were using the RFI procedure because the issues addressed in 
the supplemental briefing in Zubik affect a wide variety of stakeholders, 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, group health plans, third party administrators, 
and women enrolled in health plans established by objecting employers.  The RFI was intended to 
assist the Departments in determining whether there are modifications to the accommodation that 
would be available under current law and that could resolve the pending RFRA claims brought by 
objecting organizations.  The Departments sought feedback from all interested stakeholders, 
including objecting organizations, and specifically requested that such organizations address the 
particular issues outlined in the RFI. 
 
In response to the RFI, the Departments received over 54,000 public comments by the comment 
closing date of September 20, 2016.  Commenters included the plaintiffs in Zubik and other religiously 
affiliated organizations, consumer advocacy groups, womens organizations, health insurance issuers, 
third party administrators and pharmaceutical benefit managers, other industry representatives, 
employers, members of the public, and other interested stakeholders.14  The Departments are issuing 
this FAQ after consideration of comments submitted by a broad array of stakeholders, including the 
Zubik plaintiffs and similar religious organizations, issuers or third party administrators, and 
commenters representing womens and consumer advocacy organizations. 
 
Q:   ARE THE DEPARTMENTS MAKING CHANGES TO THE ACCOMMODATION AT THIS TIME? 
 
No.  As described in more detail below, the comments reviewed by the Departments in response to 
the RFI indicate that no feasible approach has been identified at this time that would resolve the 
concerns of religious objectors, while still ensuring that the affected women receive full and equal 
health coverage, including contraceptive coverage.  The comments demonstrate that a process like 
the one described in the Courts supplemental briefing order would not be acceptable to those with 
religious objections to the contraceptive-coverage requirement.  Further, a number of comments 
illustrate that the administrative and operational challenges to a process like the one described in the 
Courts order are more significant than the Departments had previously understood and would 
potentially undermine womens access to full and equal coverage.  For these reasons, the 
Departments are not modifying the accommodation regulations at this time.   
 
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, by virtue of objecting employers 
                                                           
14  The public comments are accessible at https://www.regulations.gov/docket?D=CMS-2016-0123. 
  5 
ability to avail themselves of the accommodation, the contraceptive-coverage requirement does not 
substantially burden their exercise of religion.  Second, as some of those courts have also held, the 
accommodation is the least restrictive means of furthering the governments compelling interest in 
ensuring that women receive full and equal health coverage, including contraceptive coverage.   
 
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.15  Specifically, the Court described 
 
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].16 
 
The Departments sought comments on whether this alternative would be acceptable to objecting 
organizations, and if not, whether further procedures or systems could resolve their RFRA concerns.  
The Departments asked if organizations specifically object on RFRA grounds to informing their issuers 
that they object to contraceptive coverage on religious grounds, or to a requirement that the 
request by an eligible organization to its issuer be made in writing or through use of a particular 
form.  The Departments also sought comments on whether it would be feasible for issuers to 
implement the accommodation without the written notification requirement and what effect this 
alternative procedure would have on the access of women to seamless contraceptive coverage. 
 
In light of the comments received, the Departments have determined not to amend the regulations at 
this time.  On the one hand, comments from parties before the Supreme Court (and other objecting 
employers) do not suggest that the change identified by the Supreme Court would resolve their 
concerns.  On the other hand, the Departments received comments stating that eliminating written 
notification would create significant administrative problems and potential legal liabilities for issuers, 
and would hinder womens access to care.  As described in greater detail below, these comments 
                                                           
15  Zubik, 2016 WL 1203818, at *2. 
16  Id. 
  6 
have shown that the elimination of the written notification requirement would raise complications 
that would undermine the statutes goal of ensuring full and equal health coverage for women, the 
extent of which were not known to the Departments at the time the government filed its 
supplemental briefs in Zubik.   
 
First, comments on behalf of issuers stated that eliminating written notifications would impose 
administrative costs by forcing them to create new systems to distinguish and track different 
employers, employees, and the coverage to be provided.17  For example, commenters stated that 
issuers currently rely on the written notifications to track the differences between eligible 
organizations that are seeking an accommodation due to their religious objections -- organizations 
that the Supreme Court has said are effectively exempt from the contraceptive-coverage 
requirement -- and religious employers that are automatically exempt under the HRSA guidelines.   
These comments asserted that eliminating written notifications would burden issuers with creating 
new systems to distinguish and track these two categories of employers.   
 
Given the different ways in which issuers must treat and respond to these two types of entities, the 
Departments understand that issuers must be able to easily and separately track the coverage issued 
to the plans sponsored by these different organizations.  With respect to exempt organizations, 
issuers merely need to eliminate contraceptive benefits from the group health insurance policy.  
However, with respect to eligible organizations that avail themselves of the accommodation, issuers 
must take the additional step of making separate payments for contraceptive services, along with 
providing notice of the availability of such payments.  Furthermore, some eligible organizations may 
object to covering all forms of contraceptive services in their group health coverage while others may 
object only to certain types of contraceptive services.  The Departments conclude therefore that 
written notification from employers significantly improves issuers ability to appropriately identify and 
administer coverage for each of these two categories of employers.  The commenters also said that 
issuers might be subject to legal risks if written notification were eliminated, because they would 
have no written record to demonstrate compliance with applicable law and regulations to the extent 
they relied on an organizations oral representation of its eligibility for the accommodation that was 
later determined to be incorrect.  Such legal risks would be magnified, according to the commenters, 
in circumstances in which issuers would have to rely on agents and brokers to verify eligibility.   
 
Based on these concerns, comments indicated that, even without a legal requirement to use a 
required form, issuers would likely seek written documentation, such as an attestation, from 
objecting employers to confirm the employers eligibility as a condition of administering the 
accommodation.  For example, an issuer might demand written documentation as a pre-condition for 
entering into a contract with an organization seeking the accommodation.  The commenters 
indicated that if the written notification requirement were eliminated, employers might object to 
providing this type of verification, which is currently commonplace for certain purposes, such as 
communicating grandfathered status.  The Departments note that, under the current accommodation, 
                                                           
17  Related to these comments with respect to the administrative costs of distinguishing and tracking different coverage to 
be provided, the Departments note that an eligible organization may seek an accommodation so that it need not 
contract, arrange, pay, or provide a referral for all otherwise required contraceptive services, or any subset of such 
services. Thus, there could be many different combinations of contraceptive services that an issuer must cover, and 
within each such combination, some such benefits must be provided by the group health insurance policy, and others 
for which the issuer must make separate payments. 
  7 
once an issuer has been provided the documentation specified in the accommodation regulations, it 
may not require any further documentation from an eligible organization regarding its status as 
such.18   
 
Second, several commenters suggested that the lack of written notice would create confusion and 
miscommunication, which in turn would lead to disputes between the parties, billing problems, and 
reduced access to care for women.  For example, comments from womens advocacy organizations 
stated that lack of written notice could have repercussions for processing payments to a provider.  
This could disrupt continuity of care and burden women seeking to resolve any miscommunication 
between the objecting entity and the issuer.  Further, according to these commenters, it could also 
impose the additional burden of affected women having to affirmatively assert their eligibility in 
situations where an employer has not timely provided its oral objection.   
 
One commenter stated that, without a written notification, an eligible employers representative may 
misstate an employers wishes or incorrectly assert eligibility for the accommodation, resulting in a 
dispute that delays the process of arranging contraceptive coverage for women. 
 
Several commenters representing womens and consumer advocacy organizations stressed the 
importance of written documentation for verifying compliance and ensuring that women are able to 
obtain direct, continuous access to the full range of contraceptive methods without cost.  These 
commenters also suggested that eliminating written documentation could hamper the Departments 
oversight and enforcement efforts. 
 
Third, as noted above, the Departments have not identified any comments from objecting employers, 
including any of the Zubik plaintiffs, stating that eliminating the written notification requirement 
would be sufficient to satisfy their RFRA concerns.  For example, one comment indicate that 
employers would object to any requirement .  .  .  that has the purpose or effect of providing access 
to or increasing the use of contraceptive services. 
 
The Departments agree that written documentation establishing that a given employer requested the 
accommodation, and that it satisfies the definition of an eligible organization, is of value to document 
the legal responsibilities and rights of employees, issuers, and beneficiaries, as well as to minimize 
the number of disputes between employers and issuers regarding the accommodation.  In turn, the 
Departments conclude that, by minimizing such disputes and providing certainty regarding which 
organizations have and have not requested the accommodation, the written notice requirement 
minimizes the potential number of employers that will be in violation of the contraceptive-coverage 
requirement.  By helping to define which organizations have and have not availed themselves of the 
accommodation, written documentation also ensures that women receive timely access to 
contraceptive coverage, as it will help issuers to quickly and effectively determine the appropriate 
source of payment for such services, i.e., payment through the group health insurance policy, or 
separate payment for contraceptive services.  And as the government explained in its Supreme Court 
briefs, the regulatory requirement for eligible organizations to provide written notification of their 
objection is consistent with RFRA.   
 
                                                           
18  26 CFR 54.8815-2713A(c)(1)(i), 29 CFR 2590.715-2713A(c)(1)(i), 45 CFR 147.131(c)(1)(i). 
  8 
OTHER APPROACHES WITH RESPECT TO INSURED PLANS DESCRIBED IN THE 
SUPPLEMENTAL BRIEFING 
 
The Zubik plaintiffs proposed that when an eligible employer with an insured plan requests insurance 
coverage that excludes contraceptive coverage to which it objects on religious grounds, the 
employers issuer should be required to provide the required coverage through separate insurance 
policies that cover only contraceptives and in which women should have to affirmatively enroll.  Pet.  
Supp.  Br.  3-12.19  The Departments sought comments on whether this alternative procedure would 
resolve the RFRA claims of objecting organizations; whether it would be feasible for health insurance 
issuers and consistent with State insurance laws; what effect this approach would have on the ability 
of women enrolled in group health plans established by objecting employers to obtain seamless 
coverage for contraceptive services; and whether there might be alternatives other than 
contraceptive-only policies or affirmative enrollment requirements that would resolve the RFRA 
objections of objecting organizations. 
 
In response to the RFI, objecting employers argued that to be truly independent, contraceptive 
coverage must be provided to women enrolled in health plans of objecting employers through 
separate insurance policies.  The Departments identified no comments indicating that eliminating 
written notification by itself would be sufficient.  In fact, several commenters stated that, even if the 
government were to eliminate the written notice requirement, the accommodation would have to be 
modified in other ways to satisfy their concerns.  One commenter, quoting from the petitioners brief 
in Zubik, stated that there must be an enrollment process that is distinct from (and not an automatic 
consequence of) enrolling in the employers plan.  Another commenter stated that the issuer or third 
party administrator should be required to provide eligible participants and beneficiaries with a 
separate enrollment card for contraceptive coverage that would require activation by each participant 
or beneficiary.  The commenter stated that this should replace the current requirement that 
participants automatically receive coverage for contraceptive services.  (For further discussion of this 
issue, see section below titled Separate Enrollment Cards and Activation.)   
 
A number of commenters emphasized the significant problems posed by requiring separate 
contraceptive-only coverage.  Commenters identified several obstacles under State contract and 
insurance law.  Comments submitted on behalf of issuers asserted that some State insurance 
regulators do not have authority under State law to approve single-benefit policies (other than dental 
or vision).  The commenters also explained that cost-free contraception policies would not satisfy 
laws conditioning policy approval on a reasonable premium or constitute valid contracts because 
the prospective policyholder would not provide consideration.  In addition, they commented that 
under State licensure laws, issuers that sell group coverage could not offer contraceptive-only policies 
to individual women because they are not licensed to offer coverage in the individual market and that 
State laws would prevent issuers licensed to issue group coverage in one State from issuing individual 
policies to employees of an eligible organization residing in other States. 
 
                                                           
19  As of the date of publication of this FAQ, 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.  
  9 
In addition, several commenters stated that separate contraceptive coverage policies may have a 
different provider network from that of the group health plan that provides the womens other health 
benefits, which would mean that the separate contraceptive policies would not necessarily include 
womens regular doctors.  One commenter stated that it would be costly and administratively 
burdensome for issuers to develop and implement new eligibility, enrollment, and claims-adjudication 
systems for contraception-only coverage, as they would differ from their existing systems.  Several 
commenters also maintained that requiring women to seek out separate contraceptive coverage 
would create the same barriers in access that the Affordable Care Acts preventive services provision 
was designed to eliminate.  The Departments agree these approaches would potentially undermine 
womens access to full and equal coverage, contrary to the statutory objective of reducing barriers to 
the use of important preventive services. 
 
SELF-INSURED PLANS 
 
The Supreme Courts supplemental briefing order in Zubik addressed only employers with insured 
plans.20  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 planthere 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 employers 
involvement, the accommodation establishes a mechanism for the 
government to designate the employers TPA [third party administrator] 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 governments 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 TPAs 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.  Govt Supp.  Br.  
16-17 (citations omitted).   
 
                                                           
20  Zubik, 2016 WL 1203818, at *2. 
  10 
The Zubik plaintiffs also stated that an arrangement like the one posited in the Supreme Courts 
briefing order for insured plans could not work for self-insured plans.  See Pet.  Supp.  Br.  16-17. 
 
The RFI sought comment on any possible modifications to the current accommodation for self-
insured plans, including self-insured church plans, which would resolve objecting organizations RFRA 
objections while still providing women full and equal access to coverage.  Specifically, the RFI asked 
whether there 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.   
 
The Departments did not identify any comments in response to the RFI that described a feasible 
pathway for oral notification to third party administrators with respect to self-insured plans to allow 
full and equal provision of contraceptive services to the women enrolled in those plans.   
 
Some commenters noted that third party administrators often do not require separate notification, 
written or oral, that a self-insured plan will not be providing contraceptive coverage because other 
documentation, such as summary plan descriptions or provider contracts, will indicate that such 
coverage is not provided under the plan.  However, without a written plan instrument, which is 
provided for in the current accommodation, there is no mechanism to designate a third party 
administrator as the ERISA plan administrator for purposes of arranging or providing separate 
payments for contraceptive services.   
 
Many commenters suggested that cost-free contraception should be provided by the federal 
government through mechanisms that differ substantially from the procedure for insured plans 
described in the Supreme Courts supplemental briefing order.  For example, some commenters 
suggested that for those self-insured plans that have third party administrators that are not able to 
provide separate cost-free contraceptive coverage to covered employees, the objecting employer 
could simply inform such third party administrators of the employers objection and the government 
would exempt such self-insured plans and third party administrators from the requirement to 
provide separate cost-free contraceptive coverage.  In those cases, commenters proposed that the 
government could provide coverage by having the employer notify HHS that the employer will not 
provide coverage and HHS would then coordinate with IRS to determine the identity of that 
employers employees through W-2 or other tax information otherwise supplied by the objecting 
employer.  These commenters suggest that such a program could be paid for by using credits against 
Federally-facilitated Exchange (FFE) user fees (which are already being used for the existing 
accommodation).     
 
One commenter asserted that the federal government could directly subsidize the cost of purchasing 
contraceptive items and services for those employees who participate in an eligible organization's 
group health plan.  However, as the Departments have previously indicated in rulemaking in response 
to comments suggesting that the government reimburse plan participants for the costs of 
contraceptive services,21 and in its briefs to the Supreme Court, this approach raises legal and 
                                                           
21  80 FR 41317, 41328 (July 14, 2015). 
  11 
practical obstacles to access to seamless coverage.  Consistent with the statutory objective of 
promoting access to preventive services, such as contraceptive coverage, without cost-sharing, plan 
participants and beneficiaries should not be required to incur additional costs or burdens to receive 
access.  Therefore, they should not be required to enroll in new programs or to surmount other 
hurdles to receive access to coverage. 
 
SEPARATE ENROLLMENT CARDS AND ACTIVATION 
 
As stated above, several objecting organizations have suggested that some of their objections to the 
accommodation could be alleviated by providing a separate enrollment card for contraceptive 
coverage.  Under this approach, women would not enroll in a separate insurance policy for 
contraceptive coverage, but would receive a separate enrollment card that would be automatically 
activated only when a woman who is enrolled in the group health plan attempts to obtain 
contraceptive benefits.   
 
If objecting employers prefer the use of a separate enrollment card for contraceptive coverage, the 
Departments note that under the current accommodation regulations, issuers or third party 
administrators could provide a separate enrollment card for contraceptive coverage.  The current 
regulations do not specify the manner in which an issuer or third party administrator provides 
enrollment cards or other means of providing similar, relevant information to enrollees, as long as 
the manner in which the card or other information is provided does not unduly inhibit or hamper 
access to the benefit.  See 29 CFR 2560.503-1, which is applicable to ERISA plans and incorporated in 
26 CFR 54.9815-2719(b)(2)(i), 29 CFR 2590.715-2719(b)(2)(i), and 45 CFR 147.136(b)(2)(i), which are 
applicable to non-grandfathered health plans and coverage.  As stated above, under current rules, the 
issuer or third party administrator could provide a separate enrollment card for contraceptive 
coverage.22  The card could bear a different design to distinguish it from enrollment cards used to 
access services covered by the employers group health plan, and could omit the name of the 
employer and/or the plan as well.  The card could use the same identification number as is used on 
the enrollment card for services covered by the group health plan, or could have a different number 
provided there is a mechanism in place (such as by linking the two numbers in the issuers or third 
party administrators processing systems) that enables the issuer or third party administrator to easily 
identify enrollees.  The foregoing arrangements are permissible if they are not used as an impediment 
to obtaining benefits and do not unduly inhibit or hamper a plan participant or beneficiary from 
accessing benefits provided pursuant to the accommodation (e.g., a plan procedure providing for the 
denial of benefits based on failure to present or activate the enrollment card or opt in, even when 
the provider has otherwise verified participant status). 
 
                                                           
22  Id.