New regulations issued on August 1, 2011 from three federal agencies will require “nongrandfathered” health plans to begin covering eight new “women’s preventive health care services.” Some of the new services that must be covered may be low-cost and not controversial (such as annual counseling for sexually transmitted infections). However, the new regulations also require coverage for certain contraceptive methods and counseling. This may be of concern to some employers, especially for employers with certain religious affiliations.

Background on Preventive Health Services. The health care reform law from last year (often called the Affordable Care Act or “ACA”) required that most “nongrandfathered” health plans begin covering certain preventive health services, such as many vaccinations and well-baby visits. These preventive health services usually must be covered without imposing any copayments, coinsurance, deductibles or other cost-sharing requirements. Whether a plan is “grandfathered” or “nongrandfathered” is generally based on whether the plan has been significantly modified since the ACA was enacted. Many plans are likely to lose their “grandfathered” status over time, although they may not have lost that status yet.

Last year’s preventive care rules state that various agencies can issue additional categories of “preventive health services” in the future. The new regulations from August 1, 2011 are an example of these additional preventive health services.

What is Covered Under New Regulations. The new regulations require the following women’s preventive health services to be covered.

Click here to see table.

Effective Date of Coverage. Affected health plans must begin covering these new women’s preventive health services as of the first day of the first plan year beginning on or after August 1, 2012 (e.g., January 1, 2013 for a calendar year plan).

Exception for Certain Employers. The new regulations generally provide that certain “religious employers” do not need to provide coverage for contraceptive methods and counseling. (Religious employers are not exempt from the seven other newly-created women’s preventive health services.)

The definition of “religious employer” seems to be fairly narrow. The definition may apply, in practice, only to churches or similar entities that primarily employ and serve people of the same religious belief. There are likely to be many other employers with a religious affiliation (such as many health care systems) that may be required to provide this coverage. These employers may have significant reservations about providing such coverage and may want to consider their options about the situation.

Will Men Benefit Also? The ACA requires that these preventive care benefits be provided “with respect to women.” The new guidance also focuses solely on how these benefits apply to women — without discussing whether men might also receive the benefits. Some of the benefits are clearly inapplicable to men, such as screening for gestational diabetes. Others, however, seem to be “gender-neutral” and would benefit both men and women, such as counseling for sexually transmitted infections and counseling for domestic violence. Although the ACA likely would not require that such benefits be provided for men, other laws might require that these benefits be provided to men. For example, Title VII of the Civil Rights Act generally requires that health plans not discriminate on the basis of gender. Might Title VII or some other law require that a health plan provide comparable benefits to men? Unfortunately, the guidance from this week does not address this question.

Link to Further Guidance. The advance copy of the regulations can be found here: http://www.ofr.gov/OFRUpload/OFRData/2011-19684_PI.pdf.