Regulation by Blog Post: Department of Labor Announces Requirement That Hobby Lobby Must Disclose To Employees That Contraceptions Are Not Covered

July 17th, 2014

In the latest regulation by blog post, titled Part XX of the Department of Labor’s FAQs about the ACA Implementation, we learn that all “closely held for-profit corporations” that do not provide certain contraceptions must provide notice to their employees. Here is the new law.

Disclosure with respect to Preventive Services

Q: My closely held for-profit corporation’s health plan will cease providing coverage for some or all contraceptive services mid-plan year. Does this reduction in coverage trigger any notice requirements to plan participants and beneficiaries?

Yes. For plans subject to the Employee Retirement Income Security Act (ERISA), ERISA requires disclosure of information relevant to coverage of preventive services, including contraceptive coverage. Specifically, the Department of Labor’s longstanding regulations at 29 CFR 2520.102-3(j)(3) provide that, the summary plan description (SPD) shall include a description of the extent to which preventive services (which includes contraceptive services) are covered under the plan. Accordingly, if an ERISA plan excludes all or a subset of contraceptive services from coverage under its group health plan, the plan’s SPD must describe the extent of the limitation or exclusion of coverage. For plans that reduce or eliminate coverage of contraceptive services after having provided such coverage, expedited disclosure requirements for material reductions in covered services or benefits apply. See ERISA section 104(b)(1) and 29 CFR 2520.104b-3(d)(1), which generally require disclosure not later than 60 days after the date of adoption of a modification or change to the plan that is a material reduction in covered services or benefits. Other disclosure requirements may apply, for example, under State insurance law applicable to health insurance issuers.

I don’t think “Accordingly” means what the government thinks it means. It’s unclear what shape this notice must take, and what this notice must say. Hobby Lobby. Go figure this out! More from WSJ.

Update: It seems that Senate Democrats have introduced a bill that would require corporations to give such notice.

The Preventive Care Coverage Notification Act, sponsored by Sens. Dick Durbin (D-Ill.) and Mark Begich (D-Alaska), would require the government to develop standards that would require businesses to tell workers whether they offer contraception coverage in their health plans.

“This bill ensures that employees have the information they need to make smart decisions,” said the lawmakers. “At the very least, we cannot stand by and allow young women or single moms to take a job expecting to get the basic insurance coverage that the law requires, only to find out too late that the corporation is denying her that coverage.”

The legislation specifically says companies should disclose what services guaranteed under the law they won’t cover, including contraception. It does not apply, however, to religious employers and other nonprofit religious organizations that have received an exemption or accommodation for their coverage limitations.

But who needs laws when you have executive power. Really, one hand of the Leviathan should talk to the other hand.