Internal Revenue Bulletin 2023-32 (PDF rendition): IRS Revenue Rulings

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Bulletin No. 2023–32
August 7, 2023
HIGHLIGHTS
OF THIS ISSUE
These synopses are intended only as aids to the reader in
identifying the subject matter covered. They may not be
relied upon as authoritative interpretations.
EMPLOYEE PLANS
Notice 2023-53, page 424.
This notice sets forth updates on the corporate bond
monthly yield curve, the corresponding spot segment rates
for July 2023 used under § 417(e)(3)(D), the 24-month aver-
age segment rates applicable for July 2023, and the 30-year
Treasury rates, as reflected by the application of § 430(h)(2)
(C)(iv).
EMPLOYEE PLANS, EXCISE TAX
REG-124930-21, page 431.
These proposed rules would amend regulations regarding
coverage of certain preventive services under the Patient
Protection and Affordable Care Act, which requires non-grand-
fathered group health plans and non-grandfathered group or
individual health insurance coverage to cover certain con-
traceptive services without cost sharing. Current regula-
tions include exemptions and optional accommodations for
entities and individuals with religious or moral objections to
coverage of contraceptive services. These rules propose
rescinding the moral exemption rule. These proposed rules
also would establish a new individual contraceptive arrange-
ment that individuals enrolled in plans or coverage spon-
sored, arranged, or provided by objecting entities may use to
obtain contraceptive services at no cost directly from a pro-
vider or facility that furnishes contraceptive services. Under
these proposed rules, a provider or facility that furnishes
contraceptive services in accordance with the individual con-
traceptive arrangement for eligible individuals would be able
to be reimbursed for its costs by entering into an arrange-
ment with an issuer on a Federally-facilitated Exchange or
State Exchange on the Federal platform, which in turn may
seek a user fee adjustment.
EMPLOYMENT TAX
T.D. 9978, page 415.
These final regulations under sections 3111, 3131, 3132,
3134 and 3221 of the Internal Revenue Code (Code), issued
under the authority granted by the Families First Coronavirus
Response Act (Families First Act), the Coronavirus Aid, Relief,
and Economic Security Act (CARES Act) in 2020, and the
American Rescue Plan Act of 2021 (ARP), implement the
authority granted under these sections to prescribe regula-
tions as may be necessary for reconciling advance payments
of refundable employment tax credits provided under these
sections and recapturing erroneous refunds of the credits.
The regulations authorize the assessment and collection of
any erroneous refund of the credits in the normal course
of processing the applicable employment tax returns. This
allows the IRS to efficiently recover any refund, while preserv-
ing administrative protections for taxpayers.
EXEMPT ORGANIZATIONS
Announcement 2023-22, page 429.
Revocation of IRC 501(c)(3) Organizations for failure to meet
the code section requirements. Contributions made to the
organizations by individual donors are no longer deductible
under IRC 170(b)(1)(A).
INCOME TAX
Notice 2023-55, page 427.
The notice provides temporary relief in determining whether
a foreign tax meets the definition of a foreign income tax
under sections 901 and 903 for the 2022 and 2023 tax years
(the relief period). For foreign taxes paid during any taxable
Finding Lists begin on page ii.

year within the relief period, taxpayers may apply: (1) former
§ 1.901-2(a) and (b), before it was amended by Treasury
Decision 9959, subject to a modification to the nonconfisca-
tory gross basis tax rule as described in the notice, and (2)
existing § 1.903-1 without the attribution requirement.
Rev. Rul. 2023-13, page 413.
Federal rates; adjusted federal rates; adjusted federal long-
term rate, and the long-term tax exempt rate. For purposes
of sections 382, 1274, 1288, 7872 and other sections of
the Code, tables set forth the rates for August 2023.

August 7, 2023 Bulletin No. 2023–32
The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate.
The IRS Mission
Provide America’s taxpayers top-quality service by helping
them understand and meet their tax responsibilities and
enforce the law with integrity and fairness to all.
Introduction
The Internal Revenue Bulletin is the authoritative instrument
of the Commissioner of Internal Revenue for announcing offi-
cial rulings and procedures of the Internal Revenue Service
and for publishing Treasury Decisions, Executive Orders, Tax
Conventions, legislation, court decisions, and other items of
general interest. It is published weekly.
It is the policy of the Service to publish in the Bulletin all sub-
stantive rulings necessary to promote a uniform application
of the tax laws, including all rulings that supersede, revoke,
modify, or amend any of those previously published in the
Bulletin. All published rulings apply retroactively unless other-
wise indicated. Procedures relating solely to matters of inter-
nal management are not published; however, statements of
internal practices and procedures that affect the rights and
duties of taxpayers are published.
Revenue rulings represent the conclusions of the Service
on the application of the law to the pivotal facts stated in
the revenue ruling. In those based on positions taken in rul-
ings to taxpayers or technical advice to Service field offices,
identifying details and information of a confidential nature are
deleted to prevent unwarranted invasions of privacy and to
comply with statutory requirements.
Rulings and procedures reported in the Bulletin do not have the
force and effect of Treasury Department Regulations, but they
may be used as precedents. Unpublished rulings will not be
relied on, used, or cited as precedents by Service personnel in
the disposition of other cases. In applying published rulings and
procedures, the effect of subsequent legislation, regulations,
court decisions, rulings, and procedures must be considered,
and Service personnel and others concerned are cautioned
against reaching the same conclusions in other cases unless
the facts and circumstances are substantially the same.
The Bulletin is divided into four parts as follows:
Part I.—1986 Code.
This part includes rulings and decisions based on provisions
of the Internal Revenue Code of 1986.
Part II.—Treaties and Tax Legislation.
This part is divided into two subparts as follows: Subpart A,
Tax Conventions and Other Related Items, and Subpart B,
Legislation and Related Committee Reports.
Part III.—Administrative, Procedural, and Miscellaneous.
To the extent practicable, pertinent cross references to these
subjects are contained in the other Parts and Subparts. Also
included in this part are Bank Secrecy Act Administrative
Rulings. Bank Secrecy Act Administrative Rulings are issued
by the Department of the Treasury’s Office of the Assistant
Secretary (Enforcement).
Part IV.—Items of General Interest.
This part includes notices of proposed rulemakings, disbar-
ment and suspension lists, and announcements.
The last Bulletin for each month includes a cumulative index
for the matters published during the preceding months. These
monthly indexes are cumulated on a semiannual basis, and are
published in the last Bulletin of each semiannual period.

Part I
Section 1274.—
Determination of Issue
Price in the Case of Certain
Debt Instruments Issued for
Property
(Also Sections 42, 280G, 382, 467, 468, 482, 483,
1288, 7520, 7872.)
Rev. Rul. 2023-13
This revenue ruling provides various
prescribed rates for federal income tax
purposes for August 2023 (the current
month). Table 1 contains the short-
term, mid-term, and long-term applica-
ble federal rates (AFR) for the current
month for purposes of section 1274(d)
of the Internal Revenue Code. Table 2
contains the short-term, mid-term, and
long-term adjusted applicable federal
rates (adjusted AFR) for the current
month for purposes of section 1288(b).
Table 3 sets forth the adjusted fed-
eral long-term rate and the long-term
tax-exempt rate described in section
382(f). Table 4 contains the appropriate
percentages for determining the low-in-
come housing credit described in sec-
tion 42(b)(1) for buildings placed
in service during the current month.
However, under section 42(b)(2), the
applicable percentage for non-federally
subsidized new buildings placed in ser-
vice after July 30, 2008, shall not be
less than 9%. Finally, Table 5 contains
the federal rate for determining the
present value of an annuity, an inter-
est for life or for a term of years, or a
remainder or a reversionary interest for
purposes of section 7520.
REV. RUL. 2023-13 TABLE 1
Applicable Federal Rates (AFR) for August 2023
Period for Compounding
AnnualSemiannualQuarterlyMonthly
Short-term
AFR5.07%5.01%4.98%4.96%
110% AFR5.59%5.51%5.47%5.45%
120% AFR6.10%6.01%5.97%5.94%
130% AFR6.62%6.51%6.46%6.42%
Mid-term
AFR4.09%4.05%4.03%4.02%
110% AFR 4.51%4.46%4.44%4.42%
120% AFR4.92%4.86%4.83%4.81%
130% AFR5.34%5.27%5.24%5.21%
150% AFR6.17%6.08%6.03%6.00%
175% AFR7.22%7.09%7.03%6.99%
Long-term
AFR4.03%3.99%3.97%3.96%
110% AFR4.44%4.39%4.37%4.35%
120% AFR4.85%4.79%4.76%4.74%
130% AFR5.26%5.19%5.16%5.13%
REV. RUL. 2023-13 TABLE 2
Adjusted AFR for August 2023
Period for Compounding
AnnualSemiannualQuarterlyMonthly
Short-term adjusted AFR3.84%3.80%3.78%3.77%
Mid-term adjusted AFR3.10%3.08%3.07%3.06%
Long-term adjusted AFR3.05%3.03%3.02%3.01%
Bulletin No. 2023–32 413 August 7, 2023

REV. RUL. 2023-13 TABLE 3
Rates Under Section 382 for August 2023
Adjusted federal long-term rate for the current month3.05%
Long-term tax-exempt rate for ownership changes during the current month (the highest of the adjusted federal
long-term rates for the current month and the prior two months.)
3.05%
REV. RUL. 2023-13 TABLE 4
Appropriate Percentages Under Section 42(b)(1) for August 2023
Note: Under section 42(b)(2), the applicable percentage for non-federally subsidized new buildings placed in service after
July 30, 2008, shall not be less than 9%.
Appropriate percentage for the 70% present value low-income housing credit7.94%
Appropriate percentage for the 30% present value low-income housing credit3.40%
REV. RUL. 2023-13 TABLE 5
Rate Under Section 7520 for August 2023
Applicable federal rate for determining the present value of an annuity, an interest for life or a term of years, or a
remainder or reversionary interest
5.00%
Section 42.—Low-Income
Housing Credit
The applicable federal short-term, mid-term,
and long-term rates are set forth for the month of
August 2023. See Rev. Rul. 2023-13, page 413.
Section 280G.—Golden
Parachute Payments
The applicable federal short-term, mid-term,
and long-term rates are set forth for the month of
August 2023. See Rev. Rul. 2023-13, page 413.
Section 382.—Limitation
on Net Operating Loss
Carryforwards and
Certain Built-In Losses
Following Ownership
Change
The adjusted applicable federal long-term rate
is set forth for the month of August 2023. See Rev.
Rul. 2023-13, page 413.
Section 467.—Certain
Payments for the Use of
Property or Services
The applicable federal short-term, mid-term,
and long-term rates are set forth for the month of
August 2023. See Rev. Rul. 2023-13, page 413.
Section 468.—Special
Rules for Mining and Solid
Waste Reclamation and
Closing Costs
The applicable federal short-term rates are set
forth for the month of August 2023. See Rev. Rul.
2023-13, page 413.
Section 482.—Allocation
of Income and Deductions
Among Taxpayers
The applicable federal short-term, mid-term,
and long-term rates are set forth for the month of
August 2023. See Rev. Rul. 2023-13, page 413.
Section 483.—Interest on
Certain Deferred Payments
The applicable federal short-term, mid-term,
and long-term rates are set forth for the month of
August 2023. See Rev. Rul. 2023-13, page 413.
Section 1288.—Treatment
of Original Issue Discount
on Tax-Exempt Obligations
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2023. See Rev. Rul. 2023-13, page 413.
Section 7520.—Valuation
Tables
The applicable federal mid-term rates are set
forth for the month of August 2023. See Rev. Rul.
2023-13, page 413.
Section 7872.—Treatment
of Loans With Below-
Market Interest Rates
The applicable federal short-term, mid-term,
and long-term rates are set forth for the month of
August 2023. See Rev. Rul. 2023-13, page 413.

August 7, 2023 414 Bulletin No. 2023–32

Bulletin No. 2023–32 415 August 7, 2023
26 CFR 31.3111-6, 26 CFR 31.3131-1, 26 CFR
31.3132-1, 26 CFR 31.3134-1, 26 CFR 31.3221-
5: Recapture of Certain Excess Employment Tax
Credits under COVID
T.D. 9978
DEPARTMENT OF THE
TREASURY
Internal Revenue Service
26 CFR Part 31
RIN 1545-BQ08
Recapture of Certain
Excess Employment Tax
Credits under COVID-19
Legislation
AGENCY: Internal Revenue Service
(IRS), Treasury.
ACTION: Final regulations and removal
of temporary regulations.
SUMMARY: This document sets forth
the final regulations under sections 3111,
3131, 3132, 3134, and 3221 of the Internal
Revenue Code (Code) issued under the
authority granted by the Families First
Coronavirus Response Act, the Coronavirus
Aid, Relief, and Economic Security Act,
and the American Rescue Plan Act of
2021. These final regulations authorize the
assessment of any erroneous refund of the
tax credits paid under sections 7001 and
7003 of the Families First Coronavirus
Response Act (including any increases in
those credits under section 7005 thereof),
and section 2301 of the Coronavirus Aid,
Relief, and Economic Security Act, as well
as under sections 3131, 3132 (including
any increases in those credits under section
3133), and 3134 of the Code.
DATES: Effective date: These final regu-
lations are effective on July 24, 2023.
Applicability date: For date of appli-
cability, see §§ 31.3111-6(e), 31.3131-
1(d), 31.3132-1(d), 31.3134-1(d), and
31.3221-5(e).
FOR FURTHER INFORMATION
CONTACT: NaLee Park at 202-317-
6798 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document sets forth amendments
to the Employment Tax Regulations (26
CFR part 31) under sections 3111, 3131,
3132, 3133, 3134, and 3221.
The Families First Coronavirus
Response Act (Families First Act), Pub.
L. 116-127, 134 Stat. 178 (March 18,
2020), as amended and extended by the
COVID-related Tax Relief Act of 2020
(Tax Relief Act), enacted as Subtitle B of
Title II of Division N of the Consolidated
Appropriations Act, 2021, Pub. L. 116-
260, 134 Stat.1182 (December 27, 2020),
and the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act),
Pub. L. 116-136, 134 Stat. 281 (March
27, 2020), as amended and extended by
the Taxpayer Certainty and Disaster Tax
Relief Act of 2020 (Relief Act), enacted
as Division EE of the Consolidated
Appropriations Act, 2021, provided
relief to taxpayers from economic hard-
ships resulting from the Coronavirus
Disease 2019 (COVID-19), including
paid sick and family leave credits to eli-
gible employers with respect to qualified
leave wages paid for a period of leave
taken beginning April 1, 2020, and ending
March 31, 2021, and an employee reten-
tion credit (ERC) with respect to qual-
ified wages paid after March 12, 2020,
and before July 1, 2021, respectively.
The American Rescue Plan Act of 2021
(ARP), Pub. L. 117-2, 135 Stat. 4 (March
11, 2021), provided additional COVID-19
relief with similar paid leave credits under
sections 3131 through 3133 of the Code,
enacted by section 9641 of the ARP, with
respect to qualified leave wages paid for
a period of leave taken beginning April
1, 2021, and ending September 30, 2021,
and a substantially similar ERC under sec-
tion 3134 of the Code, enacted by section
9651 of the ARP, with respect to qualified
wages paid after June 30, 2021, and before
January 1, 2022.
1
I. Paid Sick and Family Leave Credits
2
A. Families First Act, as amended and
extended by the Tax Relief Act
The Emergency Paid Sick Leave Act
(EPSLA) and the Emergency Family
and Medical Leave Expansion Act
(EFMLEA), enacted as Divisions E and
C of the Families First Act, respectively,
generally required certain employers with
fewer than 500 employees to provide
up to 80 hours of paid sick leave for the
care of the employees themselves or for
others for certain COVID-related reasons
specified in the statute, at specified daily
and aggregate rates of pay, and up to 10
weeks of paid family and medical leave
at two-thirds the employee’s regular rate
of pay, up to $200 per day and $10,000
in the aggregate if the employee was
unable to work or telework because the
employee was caring for a son or daughter
whose school or place of care was closed
or whose child care provider was unavail-
able due to certain circumstances related
to COVID-19.
Sections 7001 and 7003 of the Families
First Act generally provide that non-gov-
ernmental employers subject to the paid
leave requirements under EPSLA and
EFMLEA are entitled to fully refundable
tax credits to cover the wages paid for leave
taken for those periods of time between
April 1, 2020, and December 31, 2020,
during which employees were unable to
1
Section 80604 of the Infrastructure Investment and Jobs Act (Infrastructure Act), Pub. L. 117-68, 135 Stat. 429 (November 15, 2021) amended section 3134(n) of the Code to provide that the
ERC under section 3134 applies only to wages paid after June 30, 2021, and before October 1, 2021 (or, in the case of wages paid by an eligible employer which is a recovery startup business,
January 1, 2022). Therefore, the only type of employer eligible for the ERC for wages paid after September 30, 2021, and before January 1, 2022, is an employer that meets the definition of a
recovery startup business under section 3134(c)(5). See Notice 2021-65, 2021-51 IRB 880, for guidance for employers that received an advance payment of the ERC or reduced tax deposits
in anticipation of the credit for the fourth quarter of 2021 prior to the amendments made by the Infrastructure Act.
2
Detailed information on the paid sick leave credits and paid family leave credits under the Families First Act, as amended by the Tax Relief Act, and under the ARP is provided in TD 9904,
85 FR 45514, and TD 9953, 86 FR 50637, respectively. Also see the IRS.gov website at: Coronavirus Tax Relief for Businesses and Tax-Exempt Entities | Internal Revenue Service (irs.gov).

August 7, 2023 416 Bulletin No. 2023–32
work or telework for specified reasons
related to COVID-19, plus allocable qual-
ified health plan expenses. These paid sick
leave credits and paid family leave credits
(collectively, paid sick and family leave
credits) are allowed against the taxes
imposed on employers by section 3111(a)
of the Code (the Old-Age, Survivors, and
Disability Insurance tax (social security
tax)), first reduced by any credits claimed
under section 3111(e) and (f), and section
3221(a) (the Railroad Retirement Tax Act
Tier 1 tax), on all wages and compensa-
tion paid to all employees. Under sec-
tion 7005 of the Families First Act, the
qualified leave wages for which the cred-
its are claimed are not subject to the taxes
imposed on employers by sections 3111(a)
and 3221(a) of the Code. In addition, sec-
tion 7005 provides that the credits under
sections 7001 and 7003 of the Families
First Act are increased by the amount of
the tax imposed by section 3111(b) of the
Code (employer’s share of the Hospital
Insurance tax (Medicare tax)) on qualified
leave wages.
3
Although the requirement to provide
employees with paid leave under EPSLA
and EFMLEA expired on December 31,
2020, the paid sick and family leave cred-
its were extended by the Tax Relief Act for
qualified leave wages paid for periods of
leave taken through March 31, 2021, that
would have satisfied the requirements of
EPSLA and EFMLEA.
B. ARP
The ARP added sections 3131 through
3133 of the Code, which provide refund-
able paid sick and family leave cred-
its similar to those provided under the
Families First Act. Sections 3131 through
3133 extend the paid sick and family leave
credits to non-governmental employers
with fewer than 500 employees and cer-
tain governmental entities
4
without regard
to the number of employees that provided
paid sick and family leave for specified
reasons related to COVID-19 with respect
to periods of leave beginning on April 1,
2021, through September 30, 2021. The
paid sick and family leave credits under
sections 3131 through 3133 are avail-
able to eligible employers that provided
employees with paid leave that would
have satisfied the requirements of EPSLA
and EFMLEA, with certain modifications
made pursuant to the ARP.
Under section 3131, a credit is avail-
able to eligible employers that paid qual-
ified sick leave wages to an employee for
up to 80 hours of leave provided during
the period beginning April 1, 2021,
and ending September 30, 2021, if the
employee was unable to work or telework
due to any of the COVID-related rea-
sons specified in the statute. Under sec-
tion 3132, a credit is available to eligible
employers that paid qualified family leave
wages to an employee for up to 12 weeks
of paid family leave provided during the
period beginning April 1, 2021, and end-
ing September 30, 2021, if the employee
was unable to work or telework due to
any of the conditions for which eligible
employers may provide COVID-related
paid sick leave. Qualified family leave
wages are two-thirds of the wages paid at
the employee’s regular rate of pay, up to a
maximum of $200 per day and $12,000 in
the aggregate.
The paid sick and family leave credits
under sections 3131 and 3132 are allowed
against the taxes imposed on employ-
ers under section 3111(b) and against so
much of the taxes imposed under section
3221(a) as are attributable to the rate in
effect under section 3111(b), as applica-
ble, on all wages and compensation paid
to all employees, and any credit amounts
in excess of these taxes are treated as an
overpayment to be refunded under sec-
tions 6402(a) and 6413(b). See sections
3131(b)(4)(A), 3131(f)(1), 3132(b)(3)(A),
and 3132(f)(1).
II. Employee Retention Credit
5
A. CARES, as amended and extended by
the Relief Act
Section 2301 of the CARES Act, as
originally enacted, provides for the ERC
for eligible employers, including tax-ex-
empt organizations, that paid qualified
wages, including certain health plan
expenses, to some or all of their employ-
ees after March 12, 2020, and before
January 1, 2021. The ERC, as originally
enacted, is a fully refundable tax credit
for employers equal to 50 percent of qual-
ified wages. Section 2301(b)(1) of the
CARES Act limits the amount of quali-
fied wages with respect to any employee
that may be taken into account to
$10,000 for all calendar quarters in 2020.
Therefore, the maximum credit amount
with respect to each employee for all four
calendar quarters in 2020 is $5,000. For
employers that averaged more than 100
full-time employees during 2019, quali-
fied wages are wages and compensation
(including allocable qualified health plan
expenses) paid to employees who were
not providing services because opera-
tions were fully or partially suspended
due to orders from an appropriate gov-
ernmental authority limiting commerce,
travel, or group meetings (for commer-
cial, social, religious, or other purposes)
due to COVID-19 or due to a significant
decline in gross receipts. For employers
that averaged 100 full-time employees or
fewer during 2019, qualified wages are
wages and compensation (including allo-
cable qualified health plan expenses) paid
to any employee during the period oper-
ations were fully or partially suspended
due to orders from an appropriate gov-
ernmental authority limiting commerce,
travel, or group meetings (for commer-
cial, social, religious, or other purposes)
due to COVID-19 or due to a significant
decline in gross receipts, regardless of
3
The credit for the employer’s share of Medicare tax does not apply to eligible employers that are subject to the Railroad Retirement Tax Act (RRTA) because under section 7005(a) of the
Families First Act, qualified leave wages are not subject to Medicare tax under RRTA due to that section’s reference to section 3221(a) of the Code, that refers to both social security tax and
Medicare tax.
4
Section 9641 of the ARP added sections 3131(f)(5) and 3132(f)(5) to the Code that extends paid sick and family leave credits to certain governmental employers (without regard to the num-
ber of employees). However, the credits are not allowed for the government of the United States, or any agency or instrumentality of the United States Government, except for an organization
described in section 501(c)(1) of the Code and exempt from tax under section 501(a).
5
Detailed information about the ERC under the CARES Act, as amended by the Relief Act, and under the ARP is provided in TD 9904 and TD 9953, respectively. For more information, see
Notice 2021-20, 2021-11 IRB 922, Notice 2021-23, 2021-16 IRB 1113, Notice 2021-24, 2021-18 IRB 1122, Notice 2021-49, 2021-34 IRB 316, and Rev. Proc. 2021-33, 2021-34 IRB 327.
Also see the IRS.gov website at: Coronavirus Tax Relief for Businesses and Tax-Exempt Entities | Internal Revenue Service (irs.gov).

Bulletin No. 2023–32 417 August 7, 2023
whether their employees were providing
services.
The ERC available under section 2301
of the CARES Act for a calendar quarter
is allowed against the taxes imposed on
employers by section 3111(a) of the Code,
first reduced by any credits allowed under
section 3111(e) and (f) and sections 7001
and 7003 of the Families First Act, and
the taxes imposed under section 3221(a)
of the Code that are attributable to the
rate in effect under section 3111(a), first
reduced by any credits allowed under sec-
tions 7001 and 7003 of the Families First
Act, on the wages and compensation paid
with respect to the employment of all the
employees of the eligible employer for
that calendar quarter.
Section 2301 of the CARES Act was
subsequently amended by sections 206
and 207 of the Relief Act. Section 206
of the Relief Act adopted retroactive
amendments and technical changes to
section 2301 of the CARES Act for qual-
ified wages paid after March 12, 2020,
and before January 1, 2021, primarily
expanding eligibility for certain employ-
ers to claim the credit. Section 207 of the
Relief Act further amended section 2301
of the CARES Act to extend the applica-
tion of the ERC to qualified wages paid
after December 31, 2020, and before July
1, 2021, to modify the gross receipts test
for calendar quarters in 2021, and to mod-
ify the calculation of the credit amount
for qualified wages paid during that time.
Under section 2301 of the CARES Act, as
amended by section 207 of the Relief Act,
the ERC is equal to 70 percent of quali-
fied wages. The Relief Act also increased
the amount of qualified wages that could
be taken into account per employee
to $10,000 per employee per calendar
quarter in 2021. Therefore, the maxi-
mum credit amount with respect to each
employee for any calendar quarter in 2021
is $7,000. Additionally, the threshold dis-
tinguishing small employers from large
employers for purposes of applying cer-
tain criteria to determine eligibility for the
credit was increased from 100 employees
to 500 employees.
B. ARP and Infrastructure Act
Section 9651 of the ARP enacted sec-
tion 3134 of the Code, effective for cal-
endar quarters beginning after June 30,
2021, to provide an ERC for qualified
wages paid after June 30, 2021, and before
January 1, 2022. The ERC under section
3134 is substantially similar to the ERC
under section 2301 of the CARES Act,
though the ARP made some modifica-
tions including expanding the definition
of eligible employer and the definition of
qualified wages.
6
Additionally, the ERC
available under section 3134 of the Code
for a calendar quarter is allowed against
the taxes imposed on employers under
section 3111(b), first reduced by any
credits allowed under sections 3131 and
3132, and the taxes imposed under section
3221(a) that are attributable to the rate in
effect under section 3111(b), first reduced
by any credits allowed under sections
3131 and 3132, on the wages and com-
pensation paid with respect to the employ-
ment of all the employees of the eligible
employer for that calendar quarter. Any
credit amounts in excess of these taxes are
treated as an overpayment to be refunded
under sections 6402(a) and 6413(b). See
section 3134(b)(3), 3134(c)(1).
The ERC is available to any employer
that carried on a trade or business during
a calendar quarter between June 30,
2021, and January 1, 2022, that met the
requirements to be an eligible employer
under section 3134(c)(2), which include
experiencing a full or partial suspension
of business operations due to orders from
an appropriate governmental authority
limiting commerce, travel, or group meet-
ings (for commercial, social, religious,
or other purposes) due to COVID-19,
experiencing a decline in gross receipts,
or qualifying as a recovery startup busi-
ness. See Notice 2021-49. Section 80604
of the Infrastructure Act amended section
3134(n) to provide that the ERC applies
only to wages paid after June 30, 2021,
and before October 1, 2021 (or, in the case
of wages paid by an eligible employer
that was a recovery startup business in the
fourth quarter of 2021, January 1, 2022).
7
III. Refundability of Credits
Sections 7001(b)(4) and 7003(b)(3) of
the Families First Act provide that if the
amount of the paid sick and family leave
credits under these sections (including
any increases in the credits under section
7005) for the period of leave taken from
April 1, 2020 through March 31, 2021,
exceeds the taxes imposed by section
3111(a) of the Code, first reduced by any
credits claimed under section 3111(e) and
(f), or section 3221(a) for any calendar
quarter, the excess shall be treated as an
overpayment that shall be refunded under
sections 6402(a) and 6413(b). For the
period after March 12, 2020, and before
July 1, 2021, section 2301(b)(3) of the
CARES Act provides that if the amount of
the ERC exceeds the applicable employ-
ment taxes
8
(first reduced by any credits
allowed under section 3111(e) and (f) of
the Code, sections 7001 and 7003 of the
Families First Act, and section 303(d) of
the Relief Act), the excess shall be treated
as an overpayment that shall be refunded
under sections 6402(a) and 6413(b) of the
Code.
With respect to the paid sick and fam-
ily leave credits and ERC enacted by the
ARP, sections 3131(b)(4)(A), 3132(b)(3)
(A), and 3134(b)(3) of the Code provide
that if the amount of the paid sick and
family leave credits under these sections
(including any increases in the credits
under section 3133(a)) and ERC exceeds
the taxes imposed under section 3111(b)
and so much of the taxes imposed under
section 3221(a) as are attributable to the
rate in effect under section 3111(b), as
applicable, for any calendar quarter, after
application of the other credits previously
applied, the excess shall be treated as an
6
For more information on the changes made to the ERC when section 3134 was added to the Code, see Notice 2021-49.
7
Employers that qualify because they are recovery startup businesses may claim the ERC for wages paid after September 30, 2021, and before January 1, 2022. For more information, see
Notice 2021-65 for amendments made by the Infrastructure Act. Notice 2021-65 explains the retroactive termination of the ERC and provides instructions for employers that became ineligible
and must repay any advance payment of ERC or seek to avoid failure to deposit penalties for the fourth quarter of 2021.
8
“Applicable employment taxes” are defined in section 2301(c)(1) of the CARES Act as the taxes imposed by section 3111(a) of the Code or so much of the taxes imposed under section
3221(a) of the Code as are attributable to the rate in effect under section 3111(a) of the Code.

August 7, 2023 418 Bulletin No. 2023–32
overpayment that shall be refunded under
sections 6402(a) and 6413(b).
Section 6402(a) generally provides
that, within the applicable period of lim-
itations, overpayments may be cred-
ited against any liability in respect of an
Internal Revenue tax on the part of the
person who made the overpayment, and
any remaining balance refunded to that
person. Section 6413(b) provides that if
more than the correct amount of employ-
ment tax imposed by sections 3101, 3111,
3201, 3221, or 3402 is paid or deducted
and the overpayment cannot be adjusted
under section 6413(a)
9
, the amount of the
overpayment shall be refunded (subject to
the applicable statute of limitations) as the
Secretary may prescribe in regulations.
The IRS revised Form 941, Employer’s
Quarterly Federal Tax Return, Form 943,
Employer’s Annual Federal Tax Return
for Agricultural Employees, Form 944,
Employer’s Annual Federal Tax Return,
and Form CT-1, Employer’s Annual
Railroad Retirement Tax Return, several
times in calendar years 2020 through
2022 so that employers could use these
returns to claim the paid sick and family
leave credits under the Families First Act
and under sections 3131 through 3133 of
the Code and the ERC under the CARES
Act and under section 3134 of the Code
(collectively, COVID-19 credits). The
revised employment tax returns allowed
for any of these credits in excess of the
taxes imposed under section 3111(a) or
3111(b), as applicable, and so much of the
taxes imposed under section 3221(a) as
are attributable to the rate in effect under
section 3111(a) or 3111(b), as applicable,
to be credited against other employment
taxes and then for any remaining balance
to be credited or refunded to the employer
in accordance with section 6402(a) or
section 6413(b). Form 941-X, Adjusted
Employer’s Quarterly Federal Tax
Return or Claim for Refund, Form 943-
X, Adjusted Employer’s Annual Federal
Tax Return for Agricultural Employees or
Claim for Refund, Form 944-X, Adjusted
Employer’s Annual Federal Tax Return
or Claim for Refund, and Form CT-1X,
Adjusted Employer’s Annual Railroad
Retirement Tax Return or Claim for
Refund were also revised so that employ-
ers can use these returns to amend previ-
ous employment tax returns to adjust or
claim COVID-19 credits for prior periods.
IV. Advance Payment of Credits and
Erroneous Refunds
Section 3606 of the CARES Act
amended sections 7001(b)(4) and 7003(b)
(3) of the Families First Act to provide
that, in anticipation of the paid sick and
family leave credits under these sections,
including any refundable portions (includ-
ing any increases in the credits under sec-
tion 7005), these credits may be advanced,
according to forms and instructions pro-
vided by the Secretary, up to the total
allowable amount and subject to applica-
ble limits for the calendar quarter. Section
2301(l)(1) of the CARES Act provides
that the Secretary shall issue such forms,
instructions, regulations, and guidance as
are necessary to allow the advance pay-
ment of the ERC under section 2301, sub-
ject to the limitations provided in section
2301 and based on such information as the
Secretary shall require. Section 2301(j)(2)
(A) of the CARES Act, as amended by
section 207(g)(1) of the Relief Act, pro-
vides that, under rules provided by the
Secretary, eligible employers for which
the average number of full-time employ-
ees (within the meaning of section 4980H
of the Code) employed by the eligible
employer during 2019 was not greater
than 500 may elect, for calendar quarters
in 2021, to receive an advance payment of
the ERC for the quarter in an amount not
to exceed 70 percent of the average quar-
terly wages paid in calendar year 2019.
Similarly, sections 3131(b)(4)(B) and
3132(b)(3)(B) provide that, in antici-
pation of the paid sick and family leave
credits under these sections (including
any increases in the credits under section
3133(a)) and any refundable portions,
these credits are to be advanced, accord-
ing to forms and instructions provided
by the Secretary, up to the total allow-
able amount of the credits and subject to
applicable limits for the calendar quarter.
Section 3134(j)(2)(A) provides that, under
rules provided by the Secretary, eligible
employers for which the average number
of full-time employees (within the mean-
ing of section 4980H) employed by the
eligible employer during 2019 was not
greater than 500 may elect, for calendar
quarters in 2021, to receive an advance
payment of the ERC for the quarter in an
amount not to exceed 70 percent of the
average quarterly wages paid in calendar
year 2019.
To implement the advance payment
provisions, employers that were eligible
to receive an advance of the tax credits
used IRS Form 7200, Advance Payment
of Employer Credits Due To COVID-19,
to request an advance of the COVID-19
credits.
10
Employers were required to rec-
oncile any advance payments claimed on
Form 7200 with total credits claimed and
total taxes due on their employment tax
returns, including amended tax returns.
A refund or credit of any portion of the
COVID-19 credits, regardless of whether
they were advanced, claimed by a tax-
payer in excess of the amount to which the
taxpayer is entitled is an erroneous refund
that the employer must repay.
V. Assessment Authority
Section 6201 authorizes and requires
the Secretary to determine and assess tax
liabilities, including interest, additional
amounts, additions to the tax, and assess-
able penalties. The Code or other statutory
authority provides for the administrative
recapture of certain erroneous refunds of
the COVID-19 credits either by directly
authorizing the assessment of the errone-
ous refunds or by authorizing the prom-
ulgation of regulations or other guidance
to do so.
9
Section 6413(a) addresses interest-free adjustments of overpayments. The section provides that if more than the correct amount of employment tax imposed by section 3101, 3111, 3201,
3221, or 3402 is paid with respect to any payment of remuneration, proper adjustments with respect to both the tax and the amount to be deducted, shall be made, without interest, in the
manner and at the times as the Secretary may prescribe in regulations.
10
Employers are no longer able to request an advance payment of any credit on Form 7200. The advance payment of COVID-19 credits ended on January 31, 2022.

Bulletin No. 2023–32 419 August 7, 2023
Specifically, with regard to paid sick
and family leave credits, sections 7001(f)
and 7003(f) of the Families First Act and
sections 3131(g) and 3132(g) of the Code
provide, in relevant part, that the Secretary
will provide such regulations or other
guidance as may be necessary to carry out
the purposes of the credits, including reg-
ulations or other guidance to prevent the
avoidance of the purposes of the limita-
tions under these provisions and to recap-
ture the benefit of the credit where there
is a subsequent adjustment to the credit.
See sections 7001(f) and 7003(f) of the
Families First Act, and sections 3131(g)
(1), 3131(g)(4), 3132(g)(1), and 3132(g)
(4) of the Code.
With regard to the ERC, section
2301(l) of the CARES Act provides in
relevant part that the Secretary shall issue
such forms, instructions, regulations, and
guidance as are necessary to reconcile
an advance payment of the ERC with the
amount determined at the time of filing the
employment tax return for the applicable
calendar quarter or taxable year. Section
2301(j)(3)(B) of the CARES Act, as
amended by section 207 of the Relief Act,
allows for the direct assessment of certain
erroneous refunds of advanced portions of
the ERC by providing that if a small eligi-
ble employer specified in section 2301(j)
(2) of the CARES Act receives excess
advance payments of the credit, then the
taxes imposed by chapter 21 or 22 of
the Code (whichever is applicable) for
the calendar quarter are increased by the
amount of the excess. Section 2301(l) of
the CARES Act generally, as amended by
sections 206 and 207 of the Relief Act, fur-
ther provides that the Secretary shall issue
such forms, instructions, regulations, and
other guidance as are necessary to prevent
the avoidance of the purposes of the lim-
itations under section 2301 of the CARES
Act. Correspondingly, section 3134(j)
(3)(B) of the Code allows for the direct
assessment of certain erroneous refunds of
advanced portions of the credit by provid-
ing that if a small eligible employer spec-
ified in section 3134(j)(2) receives excess
advance payments of the credit, then the
taxes imposed under section 3111(b) or so
much of the taxes imposed under section
3221(a) as are attributable to the rate in
effect under section 3111(b), as applicable,
for the calendar quarter are increased by
the amount of the excess. Section 3134(m)
(3) further provides that the Secretary will
issue such forms, instructions, regula-
tions, and other guidance as are necessary
to prevent the avoidance of the purposes
of the limitations under section 3134.
VI. Temporary Regulations
On July 29, 2020, temporary regula-
tions (TD 9904, 2020-34 IRB 413 (August
17, 2020)) amending the Employment
Tax Regulations under sections 3111 and
3221 to provide for the recapture of erro-
neous refunds of the paid sick and family
leave credits under the Families First Act
and erroneous refunds of the ERC under
the CARES Act, pursuant to the author-
ity granted under these acts to prescribe
those regulations, were published in the
Federal Register (85 FR 45514). A notice
of proposed rulemaking (REG-111879-
20) cross-referencing the temporary reg-
ulations was published in the Federal
Register on the same day (85 FR 45551).
The text of the temporary regulations
served as the text of the proposed regu-
lations. No public hearing was requested
or held. Two comments responding to
the notice of proposed rulemaking were
received. All comments were considered
and are available for public inspection and
copying at https://www.regulations.gov or
upon request. After consideration of the
comments, the proposed regulations are
adopted by this Treasury decision with a
minor modification, and the correspond-
ing temporary regulations are removed.
The public comments are discussed under
“Summary of Comments and Explanation
of Provisions.”
On September 10, 2021, temporary
regulations (TD 9953, 2021-39 IRB 430
(September 27, 2021)) amending the
Employment Tax Regulations under sec-
tions 3131 through 3134 to provide for the
recapture of erroneous refunds of the paid
sick and family leave credits and ERC
under the ARP, pursuant to the author-
ity granted under that act to prescribe
those regulations, were published in the
Federal Register (86 FR 50637). A notice
of proposed rulemaking (REG-109077-
21) cross-referencing the temporary reg-
ulations was published in the Federal
Register on the same day (86 FR 50687).
The text of the temporary regulations
served as the text of the proposed regula-
tions. No public hearing was requested or
held, and no comments were received on
the proposed regulations. The proposed
regulations are adopted by this Treasury
decision with a minor modification, and
the corresponding temporary regulations
are removed.
Accordingly, this document amends
the Employment Tax Regulations (26
CFR part 31) by finalizing the regulations
under sections 3111, 3131, 3132, 3134,
and 3221 of the Code.
Summary of Comments and
Explanation of Revisions
The Department of the Treasury
(Treasury Department) and the IRS
received two comments in response to the
proposed regulations under sections 3111
and 3221 but no comments in response to
the proposed regulations under sections
3131 through 3134. Neither comment
received addressed the assessment and
recapture of erroneous refunds of cred-
its under the Families First Act and the
CARES Act. One commenter said that the
CARES Act should not fund businesses
that primarily or exclusively employ
non-citizen and temporary visa workers.
The second commenter requested that the
Treasury Department and the IRS con-
sider providing additional guidance on
potential reporting issues, including for
certain retirement-related provisions in
the CARES Act. These issues are outside
the scope of these regulations. For this rea-
son, these final regulations do not address
these comments and adopt the proposed
regulations with a minor modification.
The corresponding temporary regulations
are removed.
These final regulations provide that
erroneous refunds of COVID-19 cred-
its are treated as underpayments of the
taxes imposed under section 3111(a) or
3111(b), as applicable, and so much of the
taxes imposed under section 3221(a) as
are attributable to the rate in effect under
section 3111(a) or 3111(b), as applicable,
and are, therefore, subject to assessment
and administrative collection procedures.
This allows the IRS to prevent the avoid-
ance of the purposes of the limitations
under the credit provisions and to recover
the erroneous refund amounts efficiently

August 7, 2023 420 Bulletin No. 2023–32
while also preserving administrative pro-
tections afforded to taxpayers with respect
to contesting their tax liabilities under the
Code and avoiding unnecessary costs and
burdens associated with litigation. These
assessment and administrative collection
procedures may apply both in the pro-
cessing of employment tax returns and
in examining returns for excess claimed
credits. These assessment and admin-
istrative collection procedures are not
intended to be exclusive and therefore do
not replace the existing recapture meth-
ods but rather represent an alternative
method available to the IRS. These final
regulations also provide that the determi-
nation of any amount of credits errone-
ously refunded must take into account any
credit amounts advanced to an employer
under the process established by the IRS
in accordance with sections 7001(b)(4)
(A)(ii) and 7003(b)(3)(B) of the Families
First Act, as modified by section 3606 of
the CARES Act, and section 2301(l)(1) of
the CARES Act.
In certain circumstances, third-party
payors claim tax credits on behalf of their
common law employer clients. These final
regulations clarify that employers against
which an erroneous refund of credits may
be assessed as an underpayment include
persons treated as the employer under sec-
tions 3401(d), 3504, and 3511, consistent
with their liability for the employment
taxes against which the credits applied.
In addition, these final regulations clar-
ify the proposed regulations by expressly
stating that the common law employer
clients of these third-party payors that
remain subject to all provisions of law
applicable to employers with respect to
the payment of wages or compensation,
as applicable, may also be assessed for
an erroneous refund of credits. This clar-
ification makes clear to employers what
had been implicit in the proposed regu-
lations, that the existing rules in sections
3504 and 3511(c) concerning the liabil-
ity of common law employer clients of
third-party payors remain applicable in
this situation. Specifically, section 3504
provides that where a fiduciary, agent, or
other person is acting for an employer in
performing acts required of the employer
under the Code, “the employer for whom
such fiduciary, agent, or other person
acts shall remain subject to the provi-
sions of law (including penalties) appli-
cable in respect of employers.” See also
§§ 31.3504-1(a) and 31.3504-2(c)(2).
Similarly, section 3511(c) and § 31.3511-
1(a)(3) provide that, for third-party payors
that are Certified Professional Employer
Organizations (CPEO), an employer cli-
ent of a CPEO is treated as an employer
(and therefore subject to all applicable
provisions of law) for purposes of Federal
employment taxes imposed on remuner-
ation paid by the CPEO to non-worksite
employees.
11
While sections 3504 and
3511 applied in the same manner as a mat-
ter of law under the proposed regulations,
the final regulations expressly state these
rules to avoid any confusion and help
employers better understand their legal
responsibilities stemming from sections
3504 and 3511.
Section 7805(b)(1)(A) and (B) of the
Code generally provide that no temporary,
proposed, or final regulation relating to
the Internal Revenue laws may apply to
any taxable period ending before the earli-
est of (A) the date on which the regulation
is filed with the Federal Register, or (B)
in the case of a final regulation, the date on
which a proposed or temporary regulation
to which the final regulation relates was
filed with the Federal Register.
Consistent with the authority provided
by section 7805(b)(1)(B), §§ 31.3111-6,
31.3131-1, 31.3132-1, 31.3134-1, and
31.3221-5 are applicable to credits paid
on or after the date on which the related
proposed and temporary regulations were
filed with the Federal Register.
Special Analyses
Pursuant to the Memorandum
of Agreement, Review of Treasury
Regulations under Executive Order 12866
(June 9, 2023), tax regulatory actions
issued by the IRS are not subject to the
requirements of section 6 of Executive
Order 12866, as amended. Therefore,
a regulatory impact assessment is not
required.
Pursuant to the Regulatory Flexibility
Act (5 U.S.C. chapter 6), the Secretary
certifies that these final regulations will
not have a significant economic impact
on a substantial number of small entities
because these final regulations impose no
compliance burden on any business enti-
ties, including small entities. Although
these final regulations will apply to all
employers eligible for the employment
tax credits under the Families First Act,
the CARES Act, and sections 3131, 3132,
and 3134 of the Code, including small
businesses and tax-exempt organizations
with fewer than 500 employees, and will
therefore be likely to affect a substantial
number of small entities, the economic
impact will not be significant. These final
regulations do not affect the employer’s
employment tax reporting or the necessary
information to substantiate entitlement to
the credits. Rather, these final regulations
merely implement the statutory author-
ity granted under sections 7001(f) and
7003(f) of the Families First Act, section
2301(l) of the CARES Act, and sections
3131(g), 3132(g), and 3134(m) of the
Code that authorize the IRS to assess,
reconcile, and recapture any portion of
the credits erroneously credited, paid, or
refunded in excess of the actual amount
allowed as if the amounts were taxes
imposed under section 3111(a) or 3111(b),
whichever is applicable, and so much of
the taxes imposed under section 3221(a) as
are attributable to the rate in effect under
section 3111(a) or 3111(b), as applicable,
subject to assessment and administrative
collection procedures. Notwithstanding
this certification, the Treasury Department
and the IRS did not receive any comments
on any impact these regulations would
have on small entities.
11
Section 3511(a) provides that the CPEO is treated as the sole employer (i.e., solely subject to all provisions of law applicable to employers) for purposes of Federal employment taxes
imposed on remuneration paid to worksite employees, as defined in section 7705(e). Therefore, for remuneration paid by a CPEO to worksite employees, the employer client is not subject to
any provisions of law applicable to employers with respect to the payment of this remuneration. For this reason, the clarification in these final regulations concerning the assessment against
employer clients of a third-party payor for an erroneous refund of credits does not apply to erroneous refunds of credits that were claimed based on remuneration paid by a CPEO to worksite
employees.

Bulletin No. 2023–32 421 August 7, 2023
Statement of Availability of IRS
Documents
IRS notices and other guidance cited in
this preamble are published in the Internal
Revenue Bulletin (or Cumulative Bulletin)
and are available from the Superintendent
of Documents, U.S. Government
Publishing Office, Washington, DC
20402, or by visiting the IRS website at
https://www.irs.gov.
Drafting Information
The principal author of these final
regulations is NaLee Park, Office of the
Associate Chief Counsel (Employee
Benefits, Exempt Organizations, and
Employment Taxes). However, other per-
sonnel from the Treasury Department and
the IRS participated in the development of
these regulations.
List of Subjects in 26 CFR Part 31
Employment taxes, Fishing vessels,
Gambling, Income taxes, Penalties,
Pensions, Railroad retirement, Reporting
and recordkeeping requirements, Social
security, Unemployment compensation.
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 31 is
amended as follows:
PART 31—EMPLOYMENT TAXES
AND COLLECTION OF INCOME
TAX AT SOURCE
Paragraph 1. The authority citation
for part 31 is amended by:
a. Removing the entry for § 31.3111-6T;
b. Adding an entry in numerical order
for § 31.3111-6;
c. Removing the entries for
§§ 31.3131-1T, 31.3132-1T, 31.3134-1T,
and 31.3221-5T
d. Adding entries in numerical order
for §§ 31.3131-1, 31.3132-1, 31.3134-1.
and 31.3221-5.
The general authority and additions
read, in part, as follows:
Authority: 26 U.S.C. 7805.
Section 31.3111-6 also issued under
secs. 7001 and 7003, Pub. L. 116-127, 134
Stat. 178, and sec. 2301, Pub. L. 116-136,
134 Stat. 281.
* * * * *
Section 31.3131-1 also issued under 26
U.S.C. 3131(g).
Section 31.3132-1 also issued under 26
U.S.C. 3132(g).
Section 31.3134-1 also issued under 26
U.S.C. 3134(m)(3).
Section 31.3221-5 also issued under
secs. 7001 and 7003, Pub. L. 116-127, 134
Stat. 178, and sec. 2301, Pub. L. 116-136,
134 Stat. 281.
* * * * *
Par. 2. Section 31.3111-6 is added to
read as follows:
§31.3111-6 Recapture of credits
under the Families First Coronavirus
Response Act and the Coronavirus Aid,
Relief, and Economic Security Act.
(a) Recapture of erroneously refunded
credits under the Families First
Coronavirus Response Act. Any amount
of credits for qualified sick leave wages
or qualified family leave wages under
sections 7001 and 7003, respectively, of
the Families First Coronavirus Response
Act (Families First Act), Pub. L. 116-
127, 134 Stat. 178 (2020), as modified
by section 3606 of the Coronavirus
Aid, Relief, and Economic Security Act
(CARES Act), Pub. L. 116-136, 134 Stat.
281 (2020), plus any amount of credits
for qualified health plan expenses under
sections 7001 and 7003, and including
any increases in those credits under sec-
tion 7005 of the Families First Act, that
are treated as overpayments and refunded
or credited to an employer under sec-
tion 6402(a) or 6413(b) of the Internal
Revenue Code (Code) and to which the
employer is not entitled, resulting in an
erroneous refund to the employer, shall
be treated as an underpayment of the
taxes imposed by section 3111(a) of the
Code and may be assessed and collected
by the Secretary in the same manner as
the taxes.
(b) Recapture of erroneously refunded
credits under the Coronavirus Aid,
Relief, and Economic Security Act. Any
amount of credits for qualified wages
under section 2301 of the CARES Act
that is treated as an overpayment and
refunded or credited to an employer
under section 6402(a) or 6413(b) of the
Code and to which the employer is not
entitled, resulting in an erroneous refund
to the employer, shall be treated as an
underpayment of the taxes imposed by
section 3111(a) of the Code and may be
assessed and collected by the Secretary
in the same manner as the taxes.
(c) Advance credit amounts errone-
ously refunded. The determination of any
amount of credits erroneously refunded as
described in paragraphs (a) and (b) of this
section must take into account any amount
of credits advanced to an employer under
the process established by the Internal
Revenue Service in accordance with sec-
tions 7001(b)(4)(A)(ii) and 7003(b)(3)(B)
of the Families First Act, as modified by
section 3606 of the CARES Act, and sec-
tion 2301(l)(1) of the CARES Act.
(d) Third party payors. For purposes
of this section, employers against whom
an erroneous refund of the credits under
sections 7001 and 7003 of the Families
First Act (including any increases in
those credits under section 7005 of the
Families First Act), as modified by sec-
tion 3606 of the CARES Act, and the
credits under section 2301 of the CARES
Act can be assessed as an underpayment
of the taxes imposed by section 3111(a)
include persons treated as the employer
under sections 3401(d), 3504, and 3511
of the Code, consistent with their liabil-
ity for the section 3111(a) taxes against
which the credit applied, and also include
those persons’ common law employer
clients that remain subject to all provi-
sions of law applicable to employers with
respect to the payment of wages.
(e) Applicability date. This section
applies to all credit refunds under sec-
tions 7001 and 7003 of the Families
First Act (including any increases in
those credits under section 7005 of the
Families First Act), as modified by sec-
tion 3606 of the CARES Act, advanced
or paid on or after July 24, 2020, and all
credit refunds under section 2301 of the
CARES Act advanced or paid on or after
July 24, 2020.
§31.3111-6T [Removed]
Par. 3. Section 31.3111-6T is removed.
Par. 4. Section 31.3131-1 is added to
read as follows:

August 7, 2023 422 Bulletin No. 2023–32
§31.3131-1 Recapture of credits.
(a) Recapture of erroneously refunded
credits. Any amount of credits for qualified
sick leave wages under section 3131(a),
including any increase to the amount
of the credits under sections 3131(d),
3131(e), and 3133, that are treated as
overpayments and refunded or credited
to an employer under section 6402(a)
or 6413(b) and to which the employer
is not entitled, resulting in an erroneous
refund to the employer, shall be treated
as an underpayment of the taxes imposed
under section 3111(b) and so much of the
taxes imposed under section 3221(a) as
are attributable to the rate in effect under
section 3111(b), as applicable, and may be
assessed and collected by the Secretary in
the same manner as the taxes.
(b) Advance credit amounts errone-
ously refunded. The determination of any
amount of credits erroneously refunded
as described in paragraph (a) of this sec-
tion must take into account any amount
of credits advanced to an employer under
the process established by the Internal
Revenue Service in accordance with sec-
tion 3131(b)(4)(B) and 3131(g)(6).
(c) Third party payors. For purposes of
this section, employers against whom an
erroneous refund of the credits under sec-
tion 3131 (including any increases in those
credits under section 3133) can be assessed
as an underpayment of the taxes imposed
under section 3111(b) and so much of the
taxes imposed under section 3221(a) as
are attributable to the rate in effect under
section 3111(b), as applicable, include
persons treated as the employer under sec-
tions 3401(d), 3504, and 3511, consistent
with their liability for the section 3111(b)
or 3221(a) taxes against which the credit
applied, and also include those persons’
common law employer clients that remain
subject to all provisions of law applicable
to employers with respect to the payment
of wages or compensation, as applicable.
(d) Applicability date. This section
applies to all credit refunds under section
3131 (including any increases in those
credits under section 3133), advanced or
paid on or after September 8, 2021.
§31.3131-1T [Removed]
Par. 5. Section 31.3131-1T is removed.
Par. 6. Section 31.3132-1 is added to
read as follows:
§31.3132-1 Recapture of credits.
(a) Recapture of erroneously refunded
credits. Any amount of credits for qual-
ified family leave wages under section
3132, including any increase to the amount
of the credits under sections 3132(d),
3132(e), and 3133, that are treated as
overpayments and refunded or credited
to an employer under section 6402(a)
or 6413(b) and to which the employer
is not entitled, resulting in an erroneous
refund to the employer, shall be treated
as an underpayment of the taxes imposed
under section 3111(b) and so much of the
taxes imposed under section 3221(a) as
are attributable to the rate in effect under
section 3111(b), as applicable, and may be
assessed and collected by the Secretary in
the same manner as the taxes.
(b) Advance credit amounts errone-
ously refunded. The determination of any
amount of credits erroneously refunded
as described in paragraph (a) of this sec-
tion must take into account any amount
of credits advanced to an employer under
the process established by the Internal
Revenue Service in accordance with sec-
tion 3132(b)(3)(B) and 3132(g)(6).
(c) Third party payors. For purposes
of this section, employers against whom
an erroneous refund of the credits under
section 3132 (including any increases
in those credits under section 3133) can
be assessed as an underpayment of the
taxes imposed under section 3111(b)
and so much of the taxes imposed under
section 3221(a) as are attributable to the
rate in effect under section 3111(b), as
applicable, include persons treated as the
employer under sections 3401(d), 3504,
and 3511, consistent with their liability
for the section 3111(b) or 3221(a) taxes
against which the credit applied, and
also include those persons’ common law
employer clients that remain subject to all
provisions of law applicable to employ-
ers with respect to the payment of wages
or compensation, as applicable.
(d) Applicability date. This section
applies to all credit refunds under section
3132 (including any increases in those
credits under section 3133) advanced or
paid on or after September 8, 2021.
§31.3132-1T [Removed]
Par. 7. Section 31.3132-1T is removed.
Par. 8. Section 31.3134-1 is added to
read as follows:
§31.3134-1 Recapture of credits.
(a) Recapture of erroneously refunded
credits. Any amount of credits for quali-
fied wages under section 3134 of the Code
that is treated as an overpayment and
refunded or credited to an employer under
section 6402(a) or 6413(b) of the Code
and to which the employer is not entitled,
resulting in an erroneous refund to the
employer, shall be treated as an underpay-
ment of the taxes imposed under section
3111(b) and so much of the taxes imposed
under section 3221(a) as are attributable
to the rate in effect under section 3111(b),
as applicable, and may be assessed and
collected by the Secretary in the same
manner as the taxes.
(b) Advance credit amounts errone-
ously refunded. The determination of any
amount of credits erroneously refunded
as described in paragraph (a) of this sec-
tion must take into account any amount
of credits advanced to an employer under
the process established by the Internal
Revenue Service in accordance with sec-
tion 3134(j) and 3134(m).
(c) Third party payors. For purposes
of this section, employers against whom
an erroneous refund of the credits under
section 3134 can be assessed as an under-
payment of the taxes imposed under sec-
tion 3111(b) and so much of the taxes
imposed under section 3221(a) as are
attributable to the rate in effect under
section 3111(b), as applicable, include
persons treated as the employer under
sections 3401(d), 3504, and 3511, con-
sistent with their liability for the section
3111(b) or 3221(a) taxes against which
the credit applied, and also include those
persons’ common law employer clients
that remain subject to all provisions of
law applicable to employers with respect
to the payment of wages or compensa-
tion, as applicable.
(d) Applicability date. This section
applies to all credit refunds under sec-
tion 3134 advanced or paid on or after
September 8, 2021.

Bulletin No. 2023–32 423 August 7, 2023
§31.3134-1T [Removed]
Par. 9. Section 31.3134-1T is removed.
Par. 10. Section 31.3221-5 is added to
read as follows:
§31.3221-5 Recapture of credits
under the Families First Coronavirus
Response Act and the Coronavirus Aid,
Relief, and Economic Security Act.
(a) Recapture of erroneously refunded
credits under the Families First
Coronavirus Response Act. Any amount
of credits for qualified sick leave wages
or qualified family leave wages under sec-
tions 7001 and 7003, respectively, of the
Families First Coronavirus Response Act
(Families First Act), Pub. L. 116-127, 134
Stat. 178 (2020), as modified by section
3606 of the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act),
Pub. L. 116-136, 134 Stat. 281 (2020), plus
any amount of credits for qualified health
plan expenses under sections 7001 and
7003, that are treated as overpayments and
refunded or credited to an employer under
section 6402(a) or 6413(b) of the Internal
Revenue Code (Code) and to which the
employer is not entitled, resulting in an
erroneous refund to the employer, shall be
treated as an underpayment of the taxes
imposed by section 3221(a) of the Code
and may be assessed and collected by the
Secretary in the same manner as the taxes.
(b) Recapture of erroneously refunded
credits under the Coronavirus Aid,
Relief, and Economic Security Act. Any
amount of credits for qualified wages
under section 2301 of the CARES Act
that is treated as an overpayment and
refunded or credited to an employer
under section 6402(a) or 6413(b) of the
Code and to which the employer is not
entitled, resulting in an erroneous refund
to the employer, shall be treated as an
underpayment of the taxes imposed by
section 3221(a) of the Code and may be
assessed and collected by the Secretary
in the same manner as the taxes.
(c) Advance credit amounts errone-
ously refunded. The determination of any
amount of credits erroneously refunded as
described in paragraphs (a) and (b) of this
section must take into account any amount
of credits advanced to an employer under
the process established by the Internal
Revenue Service in accordance with sec-
tions 7001(b)(4)(A)(ii) and 7003(b)(3)(B)
of the Families First Act, as modified by
section 3606 of the CARES Act, and sec-
tion 2301(l)(1) of the CARES Act.
(d) Third party payors. For purposes of
this section, employers against whom an
erroneous refund of the credits under sec-
tions 7001 and 7003 of the Families First
Act, as modified by section 3606 of the
CARES Act, and the credits under section
2301 of the CARES Act can be assessed as
an underpayment of the taxes imposed by
section 3221(a) include persons treated as
the employer under sections 3401(d), 3504,
and 3511 of the Code, consistent with their
liability for the section 3221(a) taxes against
which the credit applied, and also include
those persons’ common law employer cli-
ents that remain subject to all provisions of
law applicable to employers with respect to
the payment of compensation.
(e) Applicability date. This section
applies to all credit refunds under sec-
tions 7001 and 7003 of the Families First
Act, as modified by section 3606 of the
CARES Act, advanced or paid on or after
July 24, 2020, and all credit refunds under
section 2301 of the CARES Act advanced
or paid on or after July 24, 2020.
§31.3221-5T [Removed]
Par. 11. Section 31.3221-5T is
removed.
Douglas W. O’Donnell,
Deputy Commissioner for Services
and Enforcement.
Approved: July 10, 2023
Lily L. Batchelder,
Assistant Secretary of the Treasury
(Tax Policy).
(Filed by the Office of the Federal Register July 24,
2023, 11:15 a.m., and published in the issue of the
Federal Register for July 26, 2023, 88 FR 48118)

August 7, 2023 424 Bulletin No. 2023–32
Part III
Update for Weighted
Average Interest Rates,
Yield Curves, and Segment
Rates
Notice 2023-53
This notice provides guidance on the
corporate bond monthly yield curve, the
corresponding spot segment rates used
under § 417(e)(3), and the 24-month aver-
age segment rates under § 430(h)(2) of the
Internal Revenue Code. In addition, this
notice provides guidance as to the inter-
est rate on 30-year Treasury securities
under § 417(e)(3)(A)(ii)(II) as in effect for
plan years beginning before 2008 and the
30-year Treasury weighted average rate
under § 431(c)(6)(E)(ii)(I).
YIELD CURVE AND SEGMENT
RATES
Section 430 specifies the minimum
funding requirements that apply to sin-
gle-employer plans (except for CSEC plans
under § 414(y)) pursuant to § 412. Section
430(h)(2) specifies the interest rates that
must be used to determine a plan’s target
normal cost and funding target. Under
this provision, present value is generally
determined using three 24-month average
interest rates (“segment rates”), each of
which applies to cash flows during speci-
fied periods. To the extent provided under
§ 430(h)(2)(C)(iv), these segment rates
are adjusted by the applicable percentage
of the 25-year average segment rates for
the period ending September 30 of the
year preceding the calendar year in which
the plan year begins.
1
However, an elec-
tion may be made under § 430(h)(2)(D)
(ii) to use the monthly yield curve in place
of the segment rates.
Notice 2007-81, 2007-44 I.R.B. 899,
provides guidelines for determining the
monthly corporate bond yield curve, and
the 24-month average corporate bond seg-
ment rates used to compute the target nor-
mal cost and the funding target. Consistent
with the methodology specified in Notice
2007-81, the monthly corporate bond
yield curve derived from June 2023 data
is in Table 2023-6 at the end of this notice.
The spot first, second, and third segment
rates for the month of June 2023 are,
respectively, 5.26, 5.23, and 5.16.
The 24-month average segment rates
determined under § 430(h)(2)(C)(i)
through (iii) must be adjusted pursuant
to § 430(h)(2)(C)(iv) to be within the
applicable minimum and maximum per-
centages of the corresponding 25-year
average segment rates. For this purpose,
any 25-year average segment rate that is
less than 5% is deemed to be 5%. The
25-year average segment rates for plan
years beginning in 2022 and 2023 were
published in Notice 2021-54, 2021-41
I.R.B. 457, and Notice 2022-40, 2022-40
I.R.B. 266, respectively. The applicable
minimum and maximum percentages are
95% and 105% for a plan year beginning
in 2022 or 2023.
24-MONTH AVERAGE CORPORATE
BOND SEGMENT RATES
The three 24-month average corporate
bond segment rates applicable for July
2023 without adjustment for the 25-year
average segment rate limits are as follows:
24-Month Average Segment Rates Without 25-Year Average Adjustment
Applicable Month First Segment Second Segment Third Segment
July 2023 3.22 4.22 4.34
The adjusted 24-month average seg-
ment rates set forth in the chart below
reflect § 430(h)(2)(C)(iv) of the Code. The
24-month averages applicable for July
2023, adjusted to be within the applicable
minimum and maximum percentages of
the corresponding 25-year average seg-
ment rates in accordance with § 430(h)(2)
(C)(iv) of the Code, are as follows:
Adjusted 24-Month Average Segment Rates
For Plan Years
Beginning InApplicable MonthFirst SegmentSecond SegmentThird Segment
2022July 20234.755.185.92
2023 July 20234.755.005.74
30-YEAR TREASURY SECURITIES
INTEREST RATES
Section 431 specifies the minimum
funding requirements that apply to
multiemployer plans pursuant to § 412.
Section 431(c)(6)(B) specifies a mini-
mum amount for the full-funding lim-
itation described in § 431(c)(6)(A),
based on the plan’s current liability.
Section 431(c)(6)(E)(ii)(I) provides
that the interest rate used to calculate
current liability for this purpose must
be no more than 5 percent above and
no more than 10 percent below the
1
Pursuant to § 433(h)(3)(A), the third segment rate determined under § 430(h)(2)(C) is used to determine the current liability of a CSEC plan (which is used to calculate the minimum amount
of the full funding limitation under § 433(c)(7)(C)).

Bulletin No. 2023–32 425 August 7, 2023
weighted average of the rates of interest
on 30-year Treasury securities during
the four-year period ending on the last
day before the beginning of the plan
year. Notice 88-73, 1988-2 C.B. 383,
provides guidelines for determining the
weighted average interest rate. The rate
of interest on 30-year Treasury securi-
ties for June 2023 is 3.86 percent. The
Service determined this rate as the aver-
age of the daily determinations of yield
on the 30-year Treasury bond maturing
in May 2053. For plan years beginning
in July 2023, the weighted average of
the rates of interest on 30-year Treasury
securities and the permissible range of
rates used to calculate current liability
are as follows:
Treasury Weighted Average Rates
For Plan Years Beginning In30-Year Treasury Weighted AveragePermissible Range 90% to 105%
July 20232.722.45 to 2.85
MINIMUM PRESENT VALUE
SEGMENT RATES
In general, the applicable interest rates
under § 417(e)(3)(D) are segment rates
computed without regard to a 24-month
average. Notice 2007-81 provides guide-
lines for determining the minimum
present value segment rates. Pursuant to
that notice, the minimum present value
segment rates determined for June 2023
are as follows:
Minimum Present Value Segment Rates
Month First Segment Second Segment Third Segment
June 2023 5.26 5.23 5.16
DRAFTING INFORMATION
The principal author of this notice is
Tom Morgan of the Office of Associate
Chief Counsel (Employee Benefits,
Exempt Organizations, and Employment
Taxes). However, other personnel from
the IRS participated in the development
of this guidance. For further information
regarding this notice, contact Mr. Morgan
at 202-317-6700 or Tony Montanaro at
626-927-1475 (not toll-free numbers).

August 7, 2023 426 Bulletin No. 2023–32
Table 2023-6
Monthly Yield Curve for June 2023
Derived from June 2023 Data
MaturityYieldMaturityYieldMaturityYieldMaturityYieldMaturityYield
0.55.7320.55.2840.55.1560.55.1180.55.09
1.05.6021.05.2741.05.1561.05.1181.05.09
1.55.4721.55.2641.55.1461.55.1181.55.09
2.05.3522.05.2642.05.1462.05.1182.05.09
2.55.2422.55.2542.55.1462.55.1182.55.09
3.05.1523.05.2443.05.1463.05.1183.05.09
3.55.0723.55.2443.55.1463.55.1083.55.09
4.05.0124.05.2344.05.1464.05.1084.05.09
4.54.9724.55.2344.55.1464.55.1084.55.09
5.04.9625.05.2245.05.1465.05.1085.05.09
5.54.9525.55.2245.55.1365.55.1085.55.09
6.04.9626.05.2146.05.1366.05.1086.05.09
6.54.9826.55.2146.55.1366.55.1086.55.09
7.05.0127.05.2147.05.1367.05.1087.05.09
7.55.0427.55.2047.55.1367.55.1087.55.08
8.05.0828.05.2048.05.1368.05.1088.05.08
8.55.1228.55.2048.55.1368.55.1088.55.08
9.05.1529.05.1949.05.1369.05.1089.05.08
9.55.1829.55.1949.55.1369.55.1089.55.08
10.05.2230.05.1950.05.1270.05.1090.05.08
10.55.2430.55.1850.55.1270.55.1090.55.08
11.05.2731.05.1851.05.1271.05.1091.05.08
11.55.2931.55.1851.55.1271.55.1091.55.08
12.05.3032.05.1852.05.1272.05.1092.05.08
12.55.3232.55.1852.55.1272.55.1092.55.08
13.05.3333.05.1753.05.1273.05.1093.05.08
13.55.3433.55.1753.55.1273.55.0993.55.08
14.05.3434.05.1754.05.1274.05.0994.05.08
14.55.3434.55.1754.55.1274.55.0994.55.08
15.05.3435.05.1655.05.1275.05.0995.05.08
15.55.3435.55.1655.55.1275.55.0995.55.08
16.05.3436.05.1656.05.1176.05.0996.05.08
16.55.3336.55.1656.55.1176.55.0996.55.08
17.05.3337.05.1657.05.1177.05.0997.05.08
17.55.3237.55.1657.55.1177.55.0997.55.08
18.05.3138.05.1558.05.1178.05.0998.05.08
18.55.3138.55.1558.55.1178.55.0998.55.08
19.05.3039.05.1559.05.1179.05.0999.05.08
19.55.2939.55.1559.55.1179.55.0999.55.08
20.05.2940.05.1560.05.1180.05.09100.05.08

Bulletin No. 2023–32 427 August 7, 2023
Temporary Relief Under
Sections 901 and 903 of
the Internal Revenue Code
Notice 2023-55
SECTION 1. PURPOSE
This notice announces temporary relief
for taxpayers in determining whether a
foreign tax is eligible for a foreign tax
credit under §§ 901 and 903 of the Internal
Revenue Code (Code). This temporary
relief, as described in section 3 of this
notice, applies with respect to § 1.901-2(a)
and (b) (the definition of a foreign income
tax and the net gain requirement) and to
§ 1.903-1(c)(1)(iv) (jurisdiction to tax
excluded income) and § 1.903-1(c)(2)(iii)
(source-based attribution requirement).
1
SECTION 2. BACKGROUND
Section 901 allows a credit for foreign
income, war profits, and excess profits
taxes, and § 903 provides that such taxes
include a tax paid in lieu of a general-
ly-imposed foreign income, war profits,
or excess profits tax (collectively, for-
eign income taxes). On January 4, 2022,
the Department of the Treasury (Treasury
Department) and the Internal Revenue
Service (IRS) published Treasury Decision
9959 in the Federal Register (87 FR 276)
(2022 FTC final regulations), which con-
tained final regulations under §§ 901 and
903. Correcting amendments to the 2022
FTC final regulations were published in the
Federal Register on July 27, 2022 (87 FR
45018 and 87 FR 45021). On November
22, 2022, the Treasury Department and
the IRS published proposed regulations
(REG-112096-22) in the Federal Register
(87 FR 71271), which included proposed
rules relating to the cost recovery require-
ment and the substitution requirement
for covered withholding taxes. On April
17, 2023, the Treasury Department and
the IRS published Notice 2023-31 in the
Internal Revenue Bulletin (IRB 2023-16)
relating to proposed § 1.903-1(c)(2)(iii)
(B) (the single-country exception).
Following the publication of the 2022
FTC final regulations and subsequent
guidance, the Treasury Department and
the IRS received questions regarding the
application of the 2022 FTC final regula-
tions and requests to modify those regu-
lations. The Treasury Department and the
IRS continue to analyze issues related to
the 2022 FTC final regulations and are
considering proposing amendments to
those regulations. As that analysis is ongo-
ing, taxpayers may apply the temporary
relief in section 3 of this notice during the
relief period, as defined in section 4 of this
notice. The Treasury Department and the
IRS are considering whether, and under
what conditions, to provide additional
temporary relief beyond the relief period.
SECTION 3. TEMPORARY RELIEF
To determine whether foreign taxes
paid
2
in the relief period are foreign
income taxes, a taxpayer may apply the
following temporary relief. First, instead
of applying existing § 1.901-2(a) and (b),
taxpayers may apply § 1.901-2(a) and (b)
as contained in 26 CFR part 1, revised
as of April 1, 2021 (former § 1.901-2(a)
and (b)), except that, for this purpose, the
seventh and eighth sentences of former
§ 1.901-2(b)(4)(i) (flush language),
3
which
describe the “nonconfiscatory gross basis
tax rule,” are deleted and replaced with
the following: “No foreign tax whose base
is gross receipts or gross income satisfies
the net income requirement, except in the
case of a foreign tax whose base consists
solely of investment income that is not
derived from a trade or business, or wage
income (or both).” Second, taxpayers may
apply existing § 1.903-1 without apply-
ing § 1.903-1(c)(1)(iv) (jurisdiction to tax
excluded income) and § 1.903-1(c)(2)(iii)
(source-based attribution requirement).
Under the temporary relief, a gross
basis tax imposed on the gross receipts or
gross income arising from the provision
of digital services (DST) does not satisfy
the net income requirement of former
§ 1.901-2(b)(4)(i), because the base of
the tax is gross receipts or gross income
and does not consist solely of investment
income that is not derived from a trade
or business, or wage income. In addi-
tion, under existing § 1.903-1, without
taking into account § 1.903-1(c)(1)(iv)
and § 1.903-1(c)(2)(iii), a foreign coun-
try’s DST that applies by its terms to any
income subject to that foreign country’s
net income tax remains not creditable
as a tax in lieu of an income tax. See
§ 1.903-1(c)(1)(ii) and (c)(2)(ii); see also
§ 1.903-1(d)(1) (Example 1).
When applying the temporary relief,
examples and cross-references in for-
mer § 1.901-2(a) and (b) and the existing
Income Tax Regulations will be considered
modified as appropriate. Appropriate mod-
ifications include the following. Examples
1-3 of former § 1.901-2(b)(4)(iv) analyze
the nonconfiscatory gross basis tax rule
and therefore are inapplicable. References
in the existing Income Tax Regulations to
a “foreign income tax” include a foreign
tax that satisfies the requirements in for-
mer § 1.901-2(a) and (b), as modified in
this section 3. Additionally, all cross-ref-
erences in former § 1.901-2(a) and (b)
to provisions in former § 1.901-2 (other
than former § 1.901-2(a) and (b)) or other
former Income Tax Regulations (such
as §§ 1.901-2A and 1.903-1) are con-
strued, as applicable, as cross-references
to the corresponding provisions (taking
into account any renumbering of those
provisions) of the existing Income Tax
Regulations.
Taxpayers may apply this temporary
relief to foreign taxes paid in any relief
year, as defined in section 4 of this notice,
provided that the taxpayer satisfies the fol-
lowing requirements. First, the taxpayer
must apply the temporary relief to (1) all
1
Unless otherwise specified, all “section” or “§” references are to sections of the Code or the Income Tax Regulations (26 CFR part 1).
2
The term “paid” in this notice has the meaning in § 1.901-2(g)(5).
3
The seventh and eighth sentences in former § 1.901-2(b)(4)(i) (flush language) are the following: “A foreign tax whose base is gross receipts or gross income does not satisfy the net income
requirement except in the rare situation where that tax is almost certain to reach some net gain in the normal circumstances in which it applies because costs and expenses will almost never
be so high as to offset gross receipts or gross income, respectively, and the rate of the tax is such that after the tax is paid persons subject to the tax are almost certain to have net gain. Thus,
a tax on the gross receipts or gross income of businesses can satisfy the net income requirement only if businesses subject to the tax are almost certain never to incur a loss (after payment
of the tax).”

August 7, 2023 428 Bulletin No. 2023–32
foreign taxes paid by the taxpayer in the
taxpayer’s relief year, and (2) all foreign
taxes (i) that are paid by any other person
in a taxable year that begins on or after
December 28, 2021 and that ends with or
within the taxpayer’s relief year, and (ii)
for which the taxpayer would be eligible
to claim a credit, as provided in § 901
(determined without regard to the limita-
tions described in § 1.901-1(b)), if the tax-
payer applied the temporary relief to such
foreign taxes. This includes foreign taxes
paid by a controlled foreign corporation
(CFC) of which the taxpayer is a United
States shareholder (U.S. shareholder) in
the CFC’s taxable year that ends with or
within the U.S. shareholder’s relief year.
Additionally, a member of a consolidated
group may apply the temporary relief to a
relief year only if all members of the con-
solidated group apply the temporary relief
to the relief year. Finally, the taxpayer may
not apply the temporary relief in a relief
year to claim a credit, as provided under
§ 901, for any amount of foreign tax for
which a deduction is allowed in the relief
year or any other taxable year.
SECTION 4. RELIEF PERIOD
For purposes of this notice, the relief
period means taxable years beginning on
or after December 28, 2021, and ending
on or before December 31, 2023, and
relief year means any taxable year within
the relief period.
SECTION 5. DRAFTING
INFORMATION
The principal authors of this
notice are Moshe Dlott and Teisha M.
Ruggiero of the Office of Associate
Chief Counsel (International). For fur-
ther information regarding this notice,
contact Mr. Dlott at (202) 317-4967 or
Ms. Ruggiero at (646) 259-8116 (not
toll-free numbers).

Bulletin No. 2023–32 429 August 7, 2023
Part IV
Deletions From
Cumulative List
of Organizations,
Contributions to Which are
Deductible Under Section
170 of the Code
Announcement 2023-22
The Internal Revenue Service has
revoked its determination that the organi-
zations listed below qualify as organiza-
tions described in sections 501(c)(3) and
170(c)(2) of the Internal Revenue Code of
1986.
Generally, the IRS will not disallow
deductions for contributions made to a
listed organization on or before the date
of announcement in the Internal Revenue
Bulletin that an organization no longer
qualifies. However, the IRS is not pre-
cluded from disallowing a deduction for
any contributions made after an organiza-
tion ceases to qualify under section 170(c)
(2) if the organization has not timely filed
a suit for declaratory judgment under sec-
tion 7428 and if the contributor (1) had
knowledge of the revocation of the ruling
or determination letter, (2) was aware that
such revocation was imminent, or (3) was
in part responsible for or was aware of the
activities or omissions of the organization
that brought about this revocation.
If on the other hand a suit for declar-
atory judgment has been timely filed,
contributions from individuals and orga-
nizations described in section 170(c)(2)
that are otherwise allowable will con-
tinue to be deductible. Protection under
section 7428(c) would begin on August
07, 2023 and would end on the date the
court first determines the organization is
not described in section 170(c)(2) as more
particularly set for in section 7428(c)(1).
For individual contributors, the maximum
deduction protected is $1,000, with a hus-
band and wife treated as one contributor.
This benefit is not extended to any indi-
vidual, in whole or in part, for the acts or
omissions of the organization that were
the basis for revocation.
NAME OF ORGANIZATION
Effective
Date of
Revocation
LOCATION
AMERICAN CANCER FOUNDATION OF ATLANTA INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF BOSTON INC.1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF WISCONSIN INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF SAN FRANCISCO INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF SAN BERNARDINO INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF SAN ANTONIO INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF RIVERSIDE1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF PITTSBURGH INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN VANCER FOUNDATION OF PHILADELPHIA INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF SAN DEIGO INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER SOCIETY OF NORTH DAKOTA INC1/1/2021NEW YORK, NY
AMERICAN CANCER SOCIETY OF PENNSYLVANIA INC1/1/2021NEW YORK, NY
AMERICAN CANCER SOCIETY OF STATEN ISLAND INC1/1/2021NEW YORK, NY
AMERICAN CANCER SOCIETY OF WISCONSIN1/1/2021NEW YORK, NY
CHILDREN CANCER SOCIETY OF AMERICA INC1/1/2021NEW YORK, NY
UNITED WAY OF NEW YORK INC1/1/2021NEW YORK, NY
UNITED WAY OF LOS ANGELES INC.1/1/2021NEW YORK, NY
UNITED WAY OF MICHIGAN INC1/1/2021NEW YORK, NY
UNITED WAY OF SAN FRANCISCO INC.1/1/2021NEW YORK, NY
AMERICAN CANCER SOCIETY FOR CHILDREN OF NORTH DAKOTA
INC.
1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF MICHIGAN INC 1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF TEXAS INC1/1/2021STATEN ISLAND, NEW YORK

August 7, 2023 430 Bulletin No. 2023–32
NAME OF ORGANIZATION
Effective
Date of
Revocation
LOCATION
AMERICAN CANCER FOUNDATION OF HOUSTON INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF LONG BEACH1/1/2021STATEN ISLAND, NEW YORK
AMERCAN CANCER SOCIETY OF ADULTS INC1/1/2021STATEN ISLAND, NEW YORK
AMERCAN CANCER SOCIETY OF NEW YORK INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF MADISON INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER SOCIETY OF BISMARK INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF MANHATTAN INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF UNITED STATES INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER SOCIETY OF MICHIGAN1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF MASSACHETTS INC1/1/2021 STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF DETROIT INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF OHIO1/1/2021STATEN ISLAND, NEW YORK
INSTITUTE FOR COMMUNITY WELLNESS1/1/2021BRONX, NEW YORK
AMERICAN CANCER FOUNDATIONOF GRAND RAPIDS, INC1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF GREEN BAY, INC.1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF LANSING1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF MILWAUKEE1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF NEW YORK1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF OAKLAND1/1/2021STATEN ISLAND, NEW YORK
AMERICAN CANCER FOUNDATION OF PENNSYLVANIA, INC1/1/2021STATEN ISLAND, NEW YORK

Bulletin No. 2023–32 431 August 7, 2023
Notice of Proposed
Rulemaking
Coverage of Certain
Preventive Services Under
the Affordable Care Act
REG 124930-21
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: Notice of proposed rulemaking.
SUMMARY: These proposed rules
would amend regulations regarding cov-
erage of certain preventive services under
the Patient Protection and Affordable
Care Act, which requires non-grandfa-
thered group health plans and non-grand-
fathered group or individual health
insurance coverage to cover certain con-
traceptive services without cost sharing.
Current regulations include exemptions
and optional accommodations for entities
and individuals with religious or moral
objections to coverage of contraceptive
services. These rules propose rescinding
the moral exemption rule. These pro-
posed rules also would establish a new
individual contraceptive arrangement
that individuals enrolled in plans or cov-
erage sponsored, arranged, or provided
by objecting entities may use to obtain
contraceptive services at no cost directly
from a provider or facility that furnishes
contraceptive services. Contraceptive
services would be available through
the proposed individual contraceptive
arrangement without any involvement
on the part of an objecting entity. Under
these proposed rules, a provider or facil-
ity that furnishes contraceptive services
in accordance with the individual contra-
ceptive arrangement for eligible individ-
uals would be able to be reimbursed for
its costs by entering into an arrangement
with an issuer on a federally-facilitated
Exchange or State Exchange on the
Federal platform, which in turn may seek
a user fee adjustment.
DATES: To be assured consideration,
comments must be received at one of the
addresses provided below, by [Insert date
60 days after date of publication in the
FEDERAL REGISTER].
ADDRESSES: In commenting, please
refer to file code CMS-9903-P.
Comments, including mass comment
submissions, must be submitted in one of
the following three ways (please choose
only one of the ways listed):
1. Electronically. You may submit
electronic comments on this regulation to
https://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-9903-P,
P.O. Box 8016,
Baltimore, MD 21244-8016.
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 follow-
ing address ONLY:
Centers for Medicare & Medicaid
Services,
Department of Health and Human
Services,
Attention: CMS-9903-P,
Mail Stop C4-26-05,
7500 Security Boulevard,
Baltimore, MD 21244-1850.
For information on viewing pub-
lic comments, see the beginning of the
SUPPLEMENTARY INFORMATION
section.
FOR FURTHER INFORMATION
CONTACT: Jason Sandoval, Internal
Revenue Service, Department of the
Treasury, at (202) 317-5500; Beth Baum
or Matthew Meidell, Employee Benefits
Security Administration, Department
of Labor, at (202) 693-8335; David
Mlawsky, Centers for Medicare &
Medicaid Services, Department of
Health and Human Services, at (410)
786-6851; for matters related to finan-
cial support, Allison Yadsko, Centers
for Medicare & Medicaid Services,
Department of Health and Human
Services, at (410) 786-1740.
Customer Service Information: Individuals
interested in obtaining information from
the Department of Labor (DOL) con-
cerning employment-based health cover-
age laws may call the Employee Benefits
Security Administration (EBSA) Toll-
Free Hotline at 1-866-444-EBSA (3272)
or visit the DOL’s website (www.dol.
gov/ebsa). In addition, information from
the Department of Health and Human
Services (HHS) on private health insur-
ance coverage and coverage provided by
non-Federal Governmental group health
plans can be found on the Centers for
Medicare & Medicaid Services (CMS)
website (www.cms.gov/cciio), and infor-
mation on health care reform can be found
at www.HealthCare.gov.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments:
Comments received before the close of the
comment period are available for viewing
by the public, including any personally
identifiable or confidential business infor-
mation that is included in a comment. We
post comments received before the close
of the comment period on the following
website as soon as possible after they have
been received: https://www.regulations.
gov. Follow the search instructions on that
website to view public comments. CMS
will not post on regulations.gov public
comments that make threats to individu-
als or institutions or suggest that the com-
menter will take actions to harm another
individual. CMS continues to encourage
individuals not to submit duplicative com-
ments. We will post acceptable comments
from multiple unique commenters even if
the content is identical or nearly identical
to other comments.

August 7, 2023 432 Bulletin No. 2023–32
I. Background
A. Legislative, Regulatory and Judicial
History
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 collec-
tively known as the Affordable Care Act
(ACA). The ACA reorganized, amended,
and added 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 ACA
added section 715(a)(1) to the Employee
Retirement Income Security Act of 1974
(ERISA) and section 9815(a)(1) to the
Internal Revenue Code (Code) to incorpo-
rate the provisions of part A of title XXVII
of the PHS Act into ERISA and the Code,
and to make them 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 ACA and incorporated into ERISA
and the Code, requires non-grandfathered
group health plans and health insurance
issuers offering non-grandfathered group
or individual health insurance coverage
to provide coverage of certain specified
preventive services without cost sharing,
including, under section 2713(a)(4) of the
PHS Act, benefits for certain women’s
preventive health services as provided for
in comprehensive guidelines supported
by the Health Resources and Services
Administration (HRSA).
1,2
On August
1, 2011, HRSA adopted guidelines for
women’s preventive health services (2011
HRSA-Supported Guidelines) based on
recommendations of the independent
Institute of Medicine (IOM), now known
as the National Academy of Medicine.
3
As
relevant here, the 2011 HRSA-Supported
Guidelines included sterilization proce-
dures, patient education and counseling
for women with reproductive capacity,
and all Food and Drug Administration
(FDA)-approved, cleared, or granted con-
traceptives, as prescribed by a health care
provider (collectively, contraceptive ser-
vices).
4
Except as discussed later in this
section, non-grandfathered group health
plans and health insurance issuers offer-
ing non-grandfathered group or individual
health insurance coverage were required
to provide coverage consistent with the
2011 HRSA-Supported Guidelines, with-
out cost sharing, for plan years (or, in the
individual market, policy years) begin-
ning on or after August 1, 2012. As fully
discussed in footnote 4 of this preamble,
the 2011 HRSA-Supported Guidelines
have been updated several times; plans
and issuers are currently required to pro-
vide coverage without cost sharing consis-
tent with the HRSA-Supported Guidelines
as amended in 2019.
HHS, DOL, and the Department of the
Treasury (collectively, the Departments)
previously issued rules and guidance
implementing section 2713 of the PHS
Act, including guidance specific to cov-
erage of contraceptive services.
5
The
Departments also previously issued
rules providing exemptions from the
1
In addition to the specified preventive services addressed in section 2713 of the PHS Act, section 3203 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), enacted
on March 27, 2020, requires non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance to cover any qualifying
coronavirus preventive service without cost sharing, pursuant to section 2713(a) of the PHS Act (including the regulations under 26 CFR 54.9815-2713, 29 CFR 2590.715-2713, and 45 CFR
147.130 (or any successor regulations)).
2
The final regulations generally provide that plans and issuers must cover a preventive service pursuant to a new or changed recommendation starting with the first plan year (or, in the indi-
vidual market, policy year) that begins on or after the date that is one year after the date on which the new recommendation is issued. 26 CFR 54.9815-2713(b)(1); 29 CFR 2590.715-2713(b)
(1); 45 CFR 147.130(b)(1). Coverage of qualifying coronavirus preventive services must begin on an expedited timeline. Pub. L. 116-136, § 3203, 134 Stat. 367 (2020); 26 CFR 54.9815-
2713T(b)(3); 29 CFR 2590.715-2713(b)(3); 45 CFR 147.130(b)(3).
3
The references to “women” in these proposed rules should be considered to include any individual potentially capable of becoming pregnant, including cisgender women, transgender men,
and non-binary individuals. Plans and issuers are required to cover contraceptive services for all such individuals consistent with the requirements in 26 CFR 54.9815-2713, 29 CFR 2590.715-
2713, and 45 CFR 147.130. See FAQs About Affordable Care Act Implementation (Part XXVI) (May 11, 2015), Q5, available at https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/
our-activities/resource-center/faqs/aca-part-xxvi.pdf and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/aca_implementation_faqs26.pdf.
4
The references in this document to “contraception,” “contraceptive,” “contraceptive coverage,” or “contraceptive services” generally include all contraceptives, sterilization, and related
patient education and counseling recommended by the HRSA-Supported Women’s Preventive Services Guidelines, unless otherwise indicated. The Guidelines issued in 2011 referred
to “Contraceptive Methods and Counseling” as “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for
all women with reproductive capacity.” The Guidelines, as amended in December 2016 refer, under the header “Contraception,” to: “the full range of female-controlled U.S. Food and
Drug Administration-approved contraceptive methods, effective family planning practices, and sterilization procedures,” “contraceptive counseling, initiation of contraceptive use, and
follow-up care (e.g., management, and evaluation as well as changes to and removal or discontinuation of the contraceptive method),” and “instruction in fertility awareness-based methods,
including the lactation amenorrhea method.” See https://www.hrsa.gov/womens-guidelines-2016/index.html. The Guidelines as amended in 2019 maintain the contraception guideline, and
note, under the header “Contraception”, the applicability of the Religious Exemptions and Accommodations for Coverage of Certain Preventive Services. See https://www.hrsa.gov/wom-
ens-guidelines-2019. The Guidelines as amended in December 2021, which are effective for plan years and policy years beginning on or after December 30, 2022, refer, under the header
“Contraception,” to “the full range of contraceptives and contraceptive care to prevent unintended pregnancies and improve birth outcomes.” Unlike in previous versions of the Guidelines,
the term “methods” no longer appears in that phrase, as the FDA does not and never has approved, granted, or cleared contraceptive methods, only contraceptive products. With the removal
of the phrase “female-controlled”, all condoms are included in the December 2021 guidelines, which include “screening, education, counseling, and provision of contraceptives (including in
the immediate postpartum period)” including “follow-up care (e.g., management, evaluation and changes, including the removal, continuation, and discontinuation of contraceptives).” The
2021 Guidelines include “the full range of U.S. Food and Drug Administration (FDA)- approved, -granted, or -cleared contraceptives, effective family planning practices, and sterilization
procedures be available as part of contraceptive care.” The 2021 Guidelines do not include sterilization surgery for men. See https://www.hrsa.gov/womens-guidelines/index.html. The follow-
ing sentence appears in the December 2016 Guidelines: “Additionally, instruction in fertility awareness-based methods, including the lactation amenorrhea method, although less effective,
should be provided for women desiring an alternative method.” Although that specific sentence does not appear in the December 2021 Guidelines, HRSA maintains that other language in
the December 2021 Guidelines establishes that such instruction is included in those Guidelines. Additionally, the U.S. District Court for the Eastern District of Texas has issued a temporary
restraining order and preliminary injunction that the effective date of the deletion of that sentence from the December 2021 Guidelines is delayed until further order of the Court, and as a
consequence the sentence remains in those Guidelines. The Court enjoined HRSA and all persons in active concert or participation with them from using or applying the December 2021
Guidelines to delete the above language, thereby maintaining that current language unless and until it is changed through a final rule issued after notice to the public and an opportunity to
comment. Tice-Harouff v. Johnson, 6:22-cv-201-JDK (E.D. Tex. Aug. 12, 2022).
5
See section II.B of the preamble for a description of the applicable guidance.

Bulletin No. 2023–32 433 August 7, 2023
contraceptive coverage requirement for
entities and individuals with moral or
religious objections to contraceptive
coverage, and accommodations through
which objecting entities are not required
to contract, arrange, pay, or provide
a referral for contraceptive coverage
while at the same time ensuring that
participants, beneficiaries, and enroll-
ees enrolled in coverage sponsored or
arranged by an objecting entity could
separately obtain contraceptive services
at no cost. Specifically, the Departments
have issued:
• Interim final rules on July 19,
2010, at 75 FR 41726 (July 2010 interim
final rules), which implemented the pre-
ventive services requirements of section
2713 of the PHS Act;
• Interim final rules amend-
ing the July 2010 interim final rules on
August 3, 2011, at 76 FR 46621 (August
2011 interim final rules), which pro-
vided HRSA with the authority to exempt
group health plans established or main-
tained by certain religious employers
(and group health insurance coverage
provided in connection with those plans)
from the requirement to cover contracep-
tive services consistent with the HRSA-
Supported Guidelines;
• Final rules on February 15, 2012,
at 77 FR 8725 (February 2012 final rules),
which finalized the definition of “religious
employer” in the August 2011 interim
final rules without modification;
• An advanced notice of pro-
posed rulemaking on March 21, 2012,
at 77 FR 16501 (March 2012 ANPRM),
soliciting comments on how to provide
for coverage of recommended preventive
services, including contraceptive services,
without cost sharing, while simultane-
ously ensuring that certain nonprofit
organizations with religious objections
to contraceptive coverage would not be
required to contract, arrange, pay, or pro-
vide a referral for that coverage;
• Proposed rules on February 6,
2013, at 78 FR 8456 (February 2013
proposed rules), which proposed to sim-
plify and clarify the definition of “reli-
gious employer” for purposes of the
religious employer exemption, and pro-
posed accommodations for group health
plans established or maintained by cer-
tain nonprofit religious organizations
with religious objections to contraceptive
coverage (and group health insurance
coverage provided in connection with
those plans) and for insured student health
plans arranged by certain nonprofit reli-
gious organizations that are institutions of
higher education with religious objections
to contraceptive coverage;
• Final rules on July 2, 2013, at 78
FR 39870 (July 2013 final rules), which
simplified and clarified the definition of
“religious employer” for purposes of the
religious employer exemption, established
an accommodation process for health
coverage established or maintained or
arranged by eligible organizations,
6
and
established the process for participating
issuers to seek a user fee adjustment under
the applicable accommodations;
• Interim final rules on August
27, 2014, at 79 FR 51092 (August 2014
interim final rules), which amended the
July 2013 final rules in light of the United
States Supreme Court’s interim order
in connection with an application for an
injunction in Wheaton College v. Burwell
7

(Wheaton interim order), and provided an
alternative process that an eligible orga-
nization may use to provide notice of its
religious objection to the coverage of con-
traceptive services;
• Proposed rules on August 27,
2014, at 79 FR 51118 (August 2014
proposed rules), which proposed poten-
tial changes to the definition of “eligible
organization” for purposes of the accom-
modation process in light of the Supreme
Court’s decision in Burwell v. Hobby
Lobby Stores, Inc.;
8
• Final rules on July 14, 2015, at
80 FR 41317 (July 2015 final rules), which
finalized the July 2010 interim final rules,
the August 2014 interim final rules related
to the process an eligible organization uses
to provide notice of its religious objection
to the coverage of contraceptive services,
as well as the August 2014 proposed rules,
which had proposed expanding the defi-
nition of “eligible organization” to allow
closely held for-profit entities to access an
accommodation with respect to the cover-
age of contraceptive services;
• A request for information on July
26, 2016, at 81 FR 47741 (July 2016 RFI),
which requested public comments on
alternative ways for objecting organiza-
tions to obtain an accommodation in light
of the Supreme Court’s decision in Zubik
v. Burwell;
9
• Frequently Asked Questions on
January 9, 2017 (FAQs Part 36), which
summarized alternative potential accom-
modations and stated that the Departments
were not modifying the existing accom-
modations because the Departments con-
tinued to be of the view that the existing
accommodations were consistent with
the Religious Freedom Restoration Act
(RFRA)
10
and that alternative accommo-
dations were not feasible;
11
• Interim final rules on October
13, 2017, at 82 FR 47792 (October 2017
Religious Exemption interim final rules),
which expanded existing religious exemp-
tions from the contraceptive coverage
requirement to objecting entities and indi-
viduals and made the existing accommo-
dation process optional;
• Interim final rules on October
13, 2017, at 82 FR 47838 (October 2017
Moral Exemption interim final rules),
which created exemptions for entities and
individuals that object to the contracep-
tive coverage requirement based on moral
convictions, and provided objecting enti-
ties access to the optional accommodation
process;
6
That accommodation process, which was the only process by which certain employers could avoid the contraceptive coverage requirement under the July 2013 final rules, now forms the
basis for what is instead an optional accommodation process under final rules published on November 15, 2018, at 83 FR 57536 (November 2018 Religious Exemption final rules).
7
Wheaton College v. Burwell, 134 S. Ct. 2806, 573 U.S. 958, 189 L. Ed. 2d 856 (2014).
8
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 573 U.S. 682, 189 L. Ed. 2d 675 (2014).
9
Zubik v. Burwell, 136 S. Ct. 1557 (2016).
10
42 U.S.C. 2000bb-1, et seq.
11
FAQs About Affordable Care Act Implementation Part 36 (Jan. 17, 2017), available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-
part-36.pdf and https://www.cms.gov/cciio/resources/fact-sheets-and-faqs/downloads/aca-faqs-part36_1-9-17-final.pdf.

August 7, 2023 434 Bulletin No. 2023–32
• Final rules on November 15,
2018, at 83 FR 57536 (November 2018
Religious Exemption final rules), which
finalized the expanded religious exemp-
tions and optional accommodation process
in the October 2017 Religious Exemption
interim final rules;
• Final rules on November 15,
2018, at 83 FR 57592 (November 2018
Moral Exemption final rules), which
finalized the new moral exemptions and
optional accommodation process in the
October 2017 Moral Exemption interim
final rules;
• Frequently Asked Questions on
August 16, 2021 (FAQs Part 48), which
announced the Departments would initiate
rulemaking to amend the November 2018
Religious and Moral Exemption final
rules in light of recent litigation;
12

• Frequently Asked Questions on
January 10, 2022 (FAQs Part 51), which
acknowledged complaints received about
compliance with the contraceptive cov-
erage requirement and clarified currently
applicable guidance;
13
and
• Frequently Asked Questions
on July 28, 2022 (FAQs Part 54), which
further clarified the contraceptive cover-
age requirement and currently applicable
guidance.
14
During the period in which the
Departments issued these rules and guid-
ance, organizations and individuals filed
lawsuits challenging the contraceptive
coverage requirement and regulations
as being inconsistent with various legal
protections, including RFRA. Plaintiffs
included religious nonprofit organiza-
tions, for-profit businesses controlled by
religious individuals, and others, includ-
ing several non-religious organizations
that opposed the required coverage of cer-
tain contraceptives on the basis of non-re-
ligious moral convictions. These lawsuits
first led to the Supreme Court’s ruling
in Burwell v. Hobby Lobby Stores, Inc.
15

The Supreme Court ruled in Hobby Lobby
that, under RFRA, the contraceptive cov-
erage requirement could not be applied
to closely held for-profit corporations
because doing so imposed a substantial
burden on the owners’ exercise of religion
and was not the least restrictive means
of advancing a compelling governmental
interest.
16
In response to Hobby Lobby, the
July 2015 final rules allowed closely held
for-profit companies to access the existing
accommodation process.
Later, a second series of legal chal-
lenges were filed by religious non-
profit organizations that argued that the
accommodation itself impermissibly
burdened their religious beliefs. On May
16, 2016, the Supreme Court issued a
per curiam decision in Zubik v. Burwell,
vacating the judgments of the Courts of
Appeals—most of which had ruled in the
Departments’ favor—and remanding the
cases “in light of the substantial clarifi-
cation and refinement in the positions of
the parties” that had been supplied in sup-
plemental briefs.
17
The Court anticipated
that, on remand, the Courts of Appeals
would “allow the parties sufficient time
to resolve any outstanding issues between
them.”
18
The Departments issued the July
2016 RFI to gather public comments in
response to the Zubik decision.
FAQs Part 36 summarized the public
comments and suggestions regarding the
accommodation process. In Zubik, the
Court suggested that the parties submit to
the court information about whether cost-
free contraceptive coverage could be pro-
vided to employees, through the objecting
employers’ health insurance issuers, with-
out the employers having to provide any
notice to the issuers or the Government.
19

Some comments received in response to
the July 2016 RFI suggested that such
an accommodation process would not be
acceptable to some employers with reli-
gious objections, and some comments
suggested that it would create significant
administrative and operational challenges
that would potentially undermine indi-
viduals’ seamless access to full and equal
health coverage, including contraceptive
coverage. Commenters also noted that the
process would not work for self-insured
plans for which there is no issuer with
a duty to provide coverage. The Zubik
plaintiffs alternatively suggested creating
contraceptive-only insurance policies in
which women would affirmatively enroll.
Comments received in response to the
July 2016 RFI expressed, among other
concerns, that these policies might not be
authorized under State contract and insur-
ance law.
Beginning in 2015, lawsuits challeng-
ing the contraceptive coverage require-
ment were also filed by non-religious
organizations with moral objections to
contraceptive coverage. In one case,
March for Life v. Burwell, a nonprofit,
non-religious organization and two of
the organization’s individual employ-
ees filed a complaint claiming that the
contraceptive coverage requirement (1)
violated the equal protection component
of the Due Process Clause of the Fifth
Amendment, (2) violated the individual
employees’ rights under RFRA, (3) vio-
lated the individuals’ rights under the First
Amendment’s Free Exercise Clause, and
(4) was arbitrary and capricious under the
Administrative Procedure Act (APA).
20

Challenges by non-religious, nonprofit
organizations led to conflicting opinions
among Federal courts. On August 31,
2015, the District Court for the District
of Columbia agreed with the March for
Life plaintiffs on the organization’s equal
12
FAQs About Affordable Care Act Implementation Part 48 (Aug. 16, 2021), available at https://www.cms.gov/files/document/faqs-part-48.pdf and https://www.dol.gov/sites/dolgov/files/
EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-48.pdf.
13
FAQs About Affordable Care Act Implementation Part 51, Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Act Implementations (Jan. 10,
2022), available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-51.pdf and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-
FAQs/Downloads/FAQs-Part-51.pdf.
14
FAQs About Affordable Care Act Implementation Part 54 (July 28, 2022), available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-
part-54.pdf and https://www.cms.gov/files/document/faqs-part-54.pdf.
15
Burwell v. Hobby Lobby Stores, Inc, 134 S. Ct. 2751 (2014).
16
Id. at 2775–79.
17
Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016).
18
Id.
19
578 U.S. 901.
20
March for Life v. Burwell, 128 F. Supp. 3d 116 (D.D.C. 2015).

Bulletin No. 2023–32 435 August 7, 2023
protection claim and the employees’
RFRA claims, and while not ruling on the
APA claim, issued a permanent injunction
against the Departments.
21
That injunction
remains in place. Conversely, in another
case, the U.S. Court of Appeals for the
Third Circuit (Third Circuit) on August
4, 2017 held that Real Alternatives—a
non-religious section 501(c)(3) nonprofit
organization and a moral objector—was
not similarly situated to a religious organi-
zation and was therefore not entitled to an
exemption.
22
The Third Circuit concluded
that “a secular antiabortion group mirrors
a single-issue interest group and not a reli-
gious organization that takes advantage of
the Exemption.”
23
In refusing to extend
the exemption to a secular nonprofit orga-
nization, the Third Circuit recognized the
“vast history of legislative protections that
single out and safeguard religious free-
dom but not moral philosophy.”
24
In October 2017, the Departments
issued the October 2017 Moral Exemption
interim final rules and the October 2017
Religious Exemption interim final rules
(together, the October 2017 interim final
rules), each of which went into effect
immediately upon release. Those rules
expanded exemptions and accommoda-
tions to include employers that object to
contraceptive coverage on nonreligious
moral grounds, along with expanding the
available religious exemptions. As stated
in the October 2017 Moral Exemption
interim final rules, with respect to the new
exemption for non-religious nonprofit
organizations, the Departments were
aware of two small nonprofit organiza-
tions that had filed lawsuits raising non-re-
ligious moral objections to coverage of
some contraceptives. HHS noted in the
2017 Moral Exemption interim final rules
that both of those entities had fewer than
five employees enrolled in health cover-
age, and both required all of their employ-
ees to agree with their opposition to the
coverage as a condition of employment.
25

In the November 2018 Moral Exemption
final rules, without data available to esti-
mate the actual number of entities that
would make use of the expanded exemp-
tion for for-profit entities without publicly
traded ownership interests and that object
to the contraceptive coverage requirement
based on sincerely held moral convictions,
the Departments estimated that fewer than
10 entities, if any, would do so.
26
Numerous states filed lawsuits chal-
lenging the October 2017 interim final
rules, contending that the October 2017
interim final rules were both procedurally
invalid and arbitrary and capricious, and
thus violated the APA. Pennsylvania and
New Jersey sued in the Eastern District
of Pennsylvania, while Massachusetts
sued in the District of Massachusetts, and
California, Delaware, Maryland, New
York, and Virginia sued in the Northern
District of California.
27
They all asked the
courts to enjoin the interim final rules.
Two Federal district courts issued
preliminary injunctions blocking the
October 2017 interim final rules nation-
wide. The Northern District of California
did so based on the states’ likelihood of
success on their procedural APA claim—
that the interim final rules were invalid
for failing to follow notice and comment
rulemaking.
28
On appeal, the Ninth Circuit
affirmed the district court decision though
it limited the geographic scope of the
injunction to the five states that were then
plaintiffs in the case. The Eastern District
of Pennsylvania enjoined the interim final
rules nationwide, holding that plaintiffs
were likely to succeed on their claims
that the Departments did not follow
proper procedures in issuing the interim
final rules, and that the interim final rules
contradict the statute.
29
While the pre-
liminary injunctions were on appeal, the
Departments issued the November 2018
Religious Exemption final rules and the
November 2018 Moral Exemption final
rules (together, the November 2018 final
rules). The district courts in California
and Pennsylvania both enjoined enforce-
ment of the November 2018 final rules,
and the courts of appeals upheld those
injunctions.
30
The November 2018 Religious
Exemption final rules ultimately expanded
existing exemptions for individuals
and entities with religious objections to
coverage of contraceptive services. All
nonprofit and for-profit employers with
sincerely held religious objections to
contraceptive coverage became eligible
for religious exemptions, as did private
universities and colleges with religious
objections with respect to student health
insurance coverage. Those rules retained
the existing accommodation process but
made it optional.
31

In January 2020, the Supreme Court
granted petitions for writ of certiorari in the
Trump v. Pennsylvania and Little Sisters
of the Poor Saints Peter and Paul Home
v. Pennsylvania cases and consolidated
them, to review whether the Departments
had the authority to promulgate rules
exempting employers with religious or
moral objections from the requirement
to cover contraceptive services.
32
The
Court held that the Departments have
broad authority to identify and create
both moral and religious exemptions and
that the final rules were not procedurally
21
Id. at 134.
22
Real Alternatives v. Sec’y of HHS, 150 F. Supp. 3d 419, affirmed 867 F. 3d 338 (3d Cir. 2017).
23
Id. at 349.
24
Id. at 350.
25
82 FR 47856-47857.
26
83 FR 57627.
27
Nine other states later joined the California litigation: Connecticut, Hawaii, Illinois, Minnesota, North Carolina, Rhode Island, Vermont, Washington, and Oregon, along with the District of
Columbia, and an additional three states (Colorado, Michigan, and Nevada) moved to intervene in June 2019.
28
California v. Azar, 281 F. Supp. 3d 806 (N.D. Cal. 2017), affirmed, 911 F.3d 558 (9th Cir. 2018).
29
See Pennsylvania v. Trump, 281 F. Supp. 3d 553 (E.D. Pa. 2017), affirmed, 930 F.3d 543 (3d Cir. 2019).
30
See Pennsylvania v. Trump, 351 F. Supp. 3d 791 (E.D. Pa. 2019), affirmed, 930 F.3d 543 (3d Cir. 2019); and California v. Azar, 351 F. Supp. 3d 1267 (N.D. Cal. 2019) (enjoining the final
rules with respect to 14 plaintiff states and the District of Columbia); affirmed, 941 F.3d 410 (9th Cir. 2019).
31
83 FR 57536, 57537-38.
32
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 918 (2020).
33
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020).

August 7, 2023 436 Bulletin No. 2023–32
invalid.
33
The Court indicated that it was
proper for the Departments to take RFRA
into account when considering religious
exemptions, but the Court did not decide
whether the rules violated the APA’s
arbitrary-and-capricious standard.
34
In
litigation following the Supreme Court’s
decision, some plaintiffs continue to argue
that the Departments did not sufficiently
weigh the benefits of expanded employer
exemptions against the harms of depriving
more women of contraceptive coverage.
35
Individuals also filed lawsuits claiming
that the contraceptive coverage require-
ment forced them to choose between (1)
purchasing health insurance that forces
them to subsidize abortion or (2) forgo-
ing health insurance. The District Court
for the Northern District of Texas agreed
with the plaintiffs in a class action lawsuit,
DeOtte v. Azar, and issued a permanent
injunction covering a class of individuals
and a class of employers, which was ulti-
mately vacated by the Fifth Circuit.
36

The states continue to challenge
the November 2018 final rules as arbi-
trary and capricious in three lawsuits. In
Massachusetts v. Dept. of Health & Human
Services, Massachusetts argued that the
moral exemption is overbroad, and that
the Departments failed to consider the
reliance interests of women who stand to
lose contraceptive coverage due to either of
the exemptions.
37
The U.S. District Court
for the District of Massachusetts ruled
that the November 2018 final rules were
neither arbitrary and capricious nor uncon-
stitutional.
38
The Massachusetts litigation
(now on appeal) is currently being held in
abeyance, while California v. Becerra and
Pennsylvania v. Biden are stayed.
39
B. Basis for Rulemaking
Section 2713(a)(4) of the PHS Act,
also known as the Women’s Health
Amendment, was enacted as part of the
ACA to ensure that plans and health insur-
ance issuers cover women’s preventive
health needs. Access to contraception is
an essential component of women’s health
care in part because contraception is effec-
tive at reducing unintended pregnancy.
Studies report that 99 percent of sexual-
ly-active women have used at least one
method of contraception at some point
during their lifetime,
40
regardless of reli-
gious affiliation.
41
The Centers for Disease
Control and Prevention (CDC) found that
65.3 percent of American women aged 15
to 49 years were using contraception from
2017 to 2019.
42
The contraceptive coverage
requirement has resulted in more women
using contraception, especially long-act-
ing reversible contraceptives (LARCs),
such as intrauterine devices (IUDs) and
implants.
43
Without health insurance or
other health coverage, contraception can
be prohibitively expensive,
44
and the cost
may deter women from obtaining needed
care.
45
Unintended pregnancies have
negative health consequences for both
women and children.
46
Poor and low-in-
come women are most likely to have an
unintended pregnancy
47
and are also more
likely to be unable to afford contraception.
Further, the U.S. Supreme Court’s deci-
sion in Dobbs v. Jackson Women’s Health
Organization,
48
which allows for Federal
and State laws that significantly limit
access to abortion and thus removes one
key option for women in making health
care decisions, has placed a heightened
importance on access to contraceptive
services nationwide. Ensuring access to
contraception at no cost (other than the
premium or contribution paid for health
coverage
49
) is a national public health
imperative, as it is a means to prevent
unintended pregnancies and help provide
better health and economic outcomes for
women, so that they can exercise control
over their reproductive health and family
planning decisions, particularly in states
with prohibitions or tight restrictions on
abortion.
In previous rulemakings, the
Departments established exemptions and
accommodations for a variety of enti-
ties. Although the November 2018 final
rules expanded religious exemptions, the
Departments have concluded that these
rulemakings did not give sufficient con-
sideration to women’s significant inter-
ests in access to contraceptive services.
Requiring individuals with low incomes
to pay out-of-pocket for contracep-
tive services creates a disproportionate
34
Id. at 2383-84.
35
See appellees supplemental brief, State of California v. Azar, Nos. 19-15072, 19-15118, 19-15150 (9
th
Cir., Aug. 28, 2020). (“For example, the court will have to determine...whether defen-
dants’ justifications are implausible because the Exemption Rules are not tailored to address the purported problems that the Rules identify...”)
36
DeOtte v. Azar, 393 F. Supp. 3d 490 (N.D. Tex. 2019), DeOtte v. Nevada, No. 19-10754 (5th Cir. Dec. 17, 2021).
37
See Mem. & Order (Op.), Massachusetts v. Dept. of Health & Human Services, No. 17-cv-11930 (D. Mass. Jan. 15, 2021), ECF No. 139.
38
Id.
39
See Stay Order, Massachusetts v. Dept. of Health & Human Services, No. 21-1076 (1st Cir. Mar. 12, 2021); Joint Status Report, California v. Becerra, No. 4:17-cv-5783-HSG (N.D. Cal.
Oct. 29, 2021); and Stay Order, Pennsylvania v. Biden, No. 2:17-cv-04540-WB (E.D. Pa. March 8, 2021).
40
Daniels, K., Mosher, W., & Jones, J. (2013). Contraceptive Methods Women Have Ever Used: United States, 1982–2010. National Health Statistics Reports, 62: 1-15.
41
Jones, R.K. (2020). People of all Religions Use Birth Control and Have Abortions. Guttmacher Institute. https://www.guttmacher.org/print/article/2020/10/
people-all-religions-use-birth-control-and-have-abortions.
42
National Center for Health Statistics, Current Contraceptive Status Among Women Aged 15-49: United States, 2017-2019. Daniels, K., & Abma, J.C. (2020) Current contraceptive status
among women aged 15–49: United States, 2017–2019. NCHS Data Brief, no 388. Hyattsville, MD: National Center for Health Statistics. Available at https://www.cdc.gov/nchs/products/
databriefs/db388.htm.
43
Snyder, A. H., Weisman, C. S., Liu, G., Leslie, D., & Chuang, C. H. (2018). The Impact of the Affordable Care Act on Contraceptive Use and Costs among Privately Insured Women. Women’s
health issues: official publication of the Jacobs Institute of Women’s Health, 28(3), 219–223. https://doi.org/10.1016/j.whi.2018.01.005.
44
Becker, N.V. & Polsky, D. (2015). Women Saw Large Decrease in Out-Of-Pocket Spending for Contraceptives After ACA Mandate Removed Cost Sharing. Health Affairs, 34(7): 1204-
1208. Available at https://www.healthaffairs.org/doi/10.1377/hlthaff.2015.0127.
45
Sonfield, A. (2011). “The Case for Insurance Coverage of Contraceptive Services and Supplies Without Cost-Sharing.” Guttmacher Policy Review, 14(1): 7-15.
46
“Preventing Unplanned Pregnancy.” National Conference of State Legislatures (2021). Available at: https://www.ncsl.org/research/health/preventing-unplanned-pregnancy.aspx.
47
Guttmacher Institute (2019). “Unintended Pregnancy in the United States.” Available at https://www.guttmacher.org/sites/default/files/factsheet/fb-unintended-pregnancy-us.pdf.
48
Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. __ (2022).
49
For ease of reference, this preamble describes the proposed individual contraceptive arrangement as providing access to contraceptive services “at no cost.” However, individuals eligible
for the individual contraceptive arrangement would typically have to pay a premium or contribution to enroll in the group health plan or health insurance coverage sponsored, arranged, or
provided by an objecting entity.

Bulletin No. 2023–32 437 August 7, 2023
financial burden and unnecessary bar-
rier to care for those individuals who
must spend a greater percentage of their
income on contraceptive services.
50
The
exemptions also ignore the government
interest in promoting coverage for con-
traceptive services and assuring access
to contraception. Furthermore, section 1
of Executive Order 13985, “Executive
Order on Advancing Racial Equity and
Support for Underserved Communities
Through the Federal Government” (E.O.
13985), instructs the Federal Government
to consider ways to affirmatively advance
equity, civil rights, racial justice, and
equal opportunity, with an emphasis
on including historically marginalized
communities and individuals. As noted
previously, requiring individuals to pay
out-of-pocket for contraceptive services
will disproportionately burden low-wage
workers. A considerable percentage of
low-income women in the U.S. already
rely on safety-net clinics for contraception
services.
51
Low-income women also have
the least access to contraception through
employer-sponsored health insurance.
52

Given that non-white women are over-
represented among low-wage workers,
exemptions for employers of low-wage
workers from requiring coverage for con-
traceptive services could further dispro-
portionately burden non-white women
by limiting their access to contraceptive
coverage and reproductive care through
employer-sponsored coverage. This
decrease in access to health care has also
resulted in an increase in the prevalence of
unplanned pregnancies for non-white and
low-income individuals.
53
In addition, his-
torically marginalized communities and
individuals are disproportionately affected
by racial biases in health care. Racial bias
has led to more skepticism about the
safety of women’s health care and less
knowledge about the efficacy of various
forms of birth control for family planning
among non-white women.
54

The disparities in maternal health
among women of different races can be
addressed in part by removing financial
barriers to accessing contraceptive ser-
vices. Racial-ethnic disparities in access
to reproductive health care, including
contraceptive services, are widespread.
55

Improving access to contraceptive ser-
vices is critical to narrowing disparities in
reproductive health access and outcomes,
as well as longer-term outcomes. Access
to postpartum contraception is important
to increase spacing between pregnancies,
as short intervals between pregnancies
can be associated with adverse health
outcomes.
56
Access to contraceptive
services without cost sharing increases
knowledge about safe and effective forms
of birth control planning and decreases
financial constraints that prevent contin-
uation of appropriate contraception use
for women in marginalized communities.
Additionally, access to contraceptive ser-
vices has wide-ranging economic effects
for women, from increased educational
attainment to increases in labor force par-
ticipation and lifetime earnings.
57

In addition to addressing the policy
objectives discussed previously, these
proposed rules are consistent with meet-
ing the objectives of several Executive
Orders and a Presidential Memorandum
issued by President Biden. On January 28,
2021, President Biden issued Executive
Order 14009, “Strengthening Medicaid
and the Affordable Care Act” (E.O.
14009).
58
Section 3 of E.O. 14009 directs
HHS, and the heads of all other executive
departments and agencies with authorities
and responsibilities related to Medicaid
and the ACA, to review all existing regu-
lations, orders, guidance documents, poli-
cies, and any other similar agency actions
to determine whether they are inconsistent
with policy priorities described in section
1 of E.O. 14009, to include protecting
and strengthening the ACA and making
high-quality health care accessible and
affordable for all individuals.
59
The ACA
is fundamentally “designed to broaden
access to healthcare and insurance cov-
erage.”
60
Further, the Women’s Health
Amendment was designed to expand
access to the preventive care and screen-
ings that women require.
61
HHS issued
the HRSA-Supported Guidelines pursu-
ant to the Women’s Health Amendment
50
Although many women try and use multiple contraceptive methods for various reasons, nearly one in five women (18 percent) say they are not currently using their preferred method of
birth control. The primary reason women say they are not using their preferred method of contraception is because they cannot afford it. See Frederiksen, B., Ranji, U., Salganikoff, A., &
Long, M., (2021), Women’s Sexual and Reproductive Health Services: Key Findings from the 2020 KFF Women’s Health Survey. https://www.kff.org/womens-health-policy/issue-brief/
womens-sexual-and-reproductive-health-services-key-findings-from-the-2020-kff-womens-health-survey/.
51
Ranji, U., Salganicoff, A., Sobel, L., & Gomez, I. (2017). Financing family planning services for low-income women: The role of public programs. The Henry J. Kaiser Family Foundation.
https://www.kff.org/wp-content/uploads/2019/10/Issue-Brief-Financing-Family-Planning-Services-for-Low-income-Women-1.pdf
52
Sawhill, I. & Guyot, K. (2019). “Preventing unplanned pregnancy: Lessons from the states.” Brookings. https://www.brookings.edu/research/preventing-unplanned-pregnancy-lessons-
from-the-states/.
53
Finer, L. & Zolna, M. (2016). “Declines in Unintended Pregnancy in the United States, 2008-2011.” N Engl J Med, 374(9):843-52 and Behn, M., Pace, LE. et al.(2019). “The Trump
Administration’s Final Regulations Limit Insurance Coverage of Contraception.” Women’s Health Issues, 29(2): 103-106.
54
Payne, C., & Fanarjian, N. (2014). Seeking causes for race-related disparities in contraceptive use. Virtual Mentor, 16(10), 805–809. https://doi.org/10.1001/virtualmentor.2014.16.10.
jdsc1-1410.
55
Sutton, M. Y., Anachebe, N. F. & Skanes H. (2021). “Racial and Ethnic Disparities in Reproductive Health Services and Outcomes, 2020.” Obstetrics and gynecology, 137(2), 225–233.
https://doi.org/10.1097/AOG.0000000000004224.
56
See The White House. (2022). White House Blueprint for Addressing the Maternal Health Crisis. https://www.whitehouse.gov/wp-content/uploads/2022/06/Maternal-Health-Blueprint.pdf.
See also Schummers, L., Hutcheon, J. A., Hernandez-Diaz, S., Williams, P. L., Hacker, M. R., VanderWeele, T. J., & Norman, W. V. (2018). Association of Short Interpregnancy Interval With
Pregnancy Outcomes According to Maternal Age. JAMA Internal Medicine, 178(12), 1661–1670. https://doi.org/10.1001/jamainternmed.2018.4696.
57
See Bernstein, Anna and Kelly M. Jones (2019). “The Economic Effects of Contraceptive Access: A Review of the Evidence.” Institute for Women’s Policy Research. Available at https://
iwpr.org/wp-content/uploads/2020/07/B381_Contraception-Access_Final.pdf.
58
86 FR 7793 (February 2, 2021).
59
E.O. 14009 also revoked Executive Order 13765 of January 20, 2017 (Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal). The Departments
adopted the moral exemption and accommodation in part to further this now revoked Executive Order by relieving a regulatory burden imposed on entities with moral convictions opposed
to providing certain contraceptive coverage.
60
Religious Sisters of Mercy v. Azar, 513 F. Supp. 3d 1113 (D.N.D. 2021).
61
To implement the Women’s Health Amendment, HRSA commissioned the independent Institute of Medicine, now known as the National Academy of Medicine, to conduct a scientific
review and provide recommendations on specific preventive measures that meet women’s health needs.

August 7, 2023 438 Bulletin No. 2023–32
that included contraceptives as a category
of preventive services recommended for
women. If finalized, these proposed rules
would better align the preventive ser-
vices regulations with the policy priorities
described in section 1 of E.O. 14009 by
expanding access to contraceptive ser-
vices without cost sharing to individuals
whose health plans currently do not or
would not offer such coverage due to a
religious or moral objection.
Also, on January 28, 2021, President
Biden issued a Memorandum on
“Protecting Women’s Health at Home and
Abroad.”
62
Section 1 of the Memorandum
stated “[w]omen should have access to the
healthcare they need. For too many women
today, both at home and abroad, that is not
possible... The Federal Government must
take action to ensure that women at home
and around the world are able to access
complete medical information, including
with respect to their reproductive health.”
These proposed rules would, if finalized,
help to support women’s access to repro-
ductive health care services at home.
On April 5, 2022, President Biden issued
Executive Order 14070, “Continuing
to Strengthen Americans’ Access to
Affordable, Quality Health Coverage”
(E.O. 14070).
63
Section 2 of E.O. 14070
requires the heads of appropriate agen-
cies to, in addition to taking the actions
directed pursuant to E.O. 14009, take
several other actions, including examine
policies or practices that make it easier for
all consumers to enroll in and retain cov-
erage, understand their coverage options,
and select appropriate coverage; that
strengthen benefits and improve access
to health care providers; that improve
the comprehensiveness of coverage and
protect consumers from low-quality cov-
erage; that expand eligibility and lower
costs for coverage in the ACA Exchanges,
Medicaid, Medicare, and other programs;
that help improve linkages between the
health care system and other stakeholders
to address health-related needs; and that
help reduce the burden of medical debt on
households. These proposed rules would
further the goals of E.O. 14070.
On July 8, 2022, President Biden issued
Executive Order 14076, “Protecting Access
to Reproductive Healthcare Services (E.O.
14076).”
64
Section 3 of E.O. 14076 requires
the Secretary of HHS to submit a report to
the President identifying potential actions
to “protect and expand access to the full
range of reproductive healthcare services,
including actions to enhance family plan-
ning services such as access to emergency
contraception” and “identifying ways to
increase outreach and education about
access to reproductive healthcare services,
including by launching a public awareness
initiative to provide timely and accurate
information about such access, which
shall include promoting awareness of and
access to the full range of contraceptive
services.” These proposed rules would
take critical steps to further the goals in
E.O. 14076 by expanding access to the
full range of contraceptive services for
women enrolled in coverage established
or maintained by an objecting entity, or
in health insurance coverage offered or
arranged by an objecting entity.
In addition to addressing the directives
in the Executive Orders discussed above,
these proposed rules also address the con-
cerns about limiting access to contracep-
tion that have been raised by litigants. The
Supreme Court remanded the Little Sisters
cases to the U.S. Courts of Appeals for the
Third and Ninth Circuits, respectively,
to consider whether the November 2018
final rules adequately considered women’s
health and access to contraceptives or were
arbitrary and capricious. Under the current
exemptions, objectors are not required
to inform participants, beneficiaries, or
enrollees that the plan or coverage does
not cover contraceptive services or invoke
the optional accommodation, and no alter-
native mechanisms provide contraceptive
coverage for affected women—leaving
many women without coverage.
65
Given
that the November 2018 final rules allow,
but do not require, objecting entities to
invoke the accommodation process, many
women in plans subject to an exemption
may be unable to access contraceptive ser-
vices due to financial, logistical, or admin-
istrative barriers.
These proposed rules seek to ensure
that women who are enrolled in either a
group health plan established or main-
tained by an objecting entity, or in health
insurance coverage offered or arranged by
an objecting entity, including an employer,
institution of higher education, or health
insurance issuer, have access to cost-free
contraceptive coverage, even when the
objecting entity claims the regulatory
exemption without voluntarily using the
accommodation process. This proposed
approach would further the government’s
interest in protecting women’s health and
their right to make reproductive decisions.
In light of these considerations, the
Departments are issuing these proposed
rules to further the government’s interest
in promoting coverage for contraceptive
services for all women,
66
and in eliminat-
ing barriers to access, while respecting
the religious objections of employers,
health insurance issuers, and institutions
of higher education to coverage of contra-
ceptive services.
II. Overview of the Proposed Rules—
Departments of HHS, Labor, and the
Treasury
A. Introduction
As discussed in section I.B of this pre-
amble, the Departments have engaged in
several rounds of rulemaking and other
initiatives that solicited public input in an
effort to address the claims of those reli-
gious employers, institutions of higher
education, and health insurance issuers
that object to providing coverage for con-
traceptive services while also ensuring
women’s access to seamless coverage for
contraceptive services. Previously, under
the July 2015 final rules, many of the
objecting entities that are now covered by
the November 2018 Religious Exemption
final rules could avoid the contraceptive
62
86 FR 33077.
63
87 FR 20689.
64
87 FR 42053.
65
In the November 2018 final rules, the Departments estimated that between 70,500 and 126,400 women may have lost contraceptive coverage as a result of the November 2018 Religious
Exemption final rules, and that approximately 15 women may have incurred contraceptive costs due to use of the November 2018 Moral Exemption final rules by for-profit entities.
66
See Section VI.B.2. of this preamble, under the Benefits heading.

Bulletin No. 2023–32 439 August 7, 2023
coverage requirement only by invoking
an accommodation. The accommodation
was designed so that these entities were
not required to contract, arrange, pay, or
provide a referral for contraceptive cov-
erage. At the same time, the accommoda-
tion was intended to generally ensure that
women enrolled in a health plan estab-
lished, maintained, or arranged by the
eligible organization, similar to women
enrolled in health plans maintained by
other employers, received contraceptive
coverage seamlessly—that is, through the
same issuers or third party administrators
that provided or administered the health
coverage furnished by the eligible organi-
zation, and without financial, logistical, or
administrative obstacles.
As explained in section I.A of this pre-
amble, several employers challenged the
contraceptive coverage accommodation
under RFRA. These religious-objector
employers alleged that the accommo-
dation violated RFRA by making them
complicit in the provision of contracep-
tive services and care. These employers
also asserted that the public interest of
ensuring women have access to contra-
ceptive coverage can be accomplished in
a way that complies with RFRA, that is,
in a less restrictive way than the accom-
modation. Ultimately, the Departments
issued the November 2018 final rules,
which significantly expanded the types
of entities eligible for a religious exemp-
tion, created an exemption for entities
with a non-religious moral objection, and
made the aforementioned accommoda-
tion optional.
As noted previously, a number of
states challenged the November 2018
final rules in court, arguing that these
rules are unlawfully arbitrary and capri-
cious. In light of this litigation, and upon
further consideration, the Departments
have determined that the November 2018
final rules failed to adequately account
for women’s legal entitlement to access
preventive care, critically including con-
traceptive services, without cost sharing
as Congress intended; the impact on the
number of unintended pregnancies; the
costs to states and individuals of such
pregnancies; and the government’s inter-
est in ensuring women have access to this
coverage.
These proposed rules, if finalized, seek
to resolve the long-running litigation with
respect to religious objections to provid-
ing contraceptive coverage, by respecting
the objecting entities’ religious objections
while also ensuring that women enrolled
in plans or coverage sponsored, arranged,
or provided by objecting entities have the
opportunity to obtain contraceptive ser-
vices at no cost. These rules propose to
maintain the November 2018 final rules’
religious exemption for entities with sin-
cerely held religious objections to provid-
ing coverage for contraceptive services,
under the preventive services guidelines
pursuant to 26 CFR 54.9815-2713(a)(1)
(iv), 29 CFR 2590.715-2713(a)(1)(iv), and
45 CFR 147.130(a)(1)(iv). Additionally,
under these proposed rules, entities that
sponsor insured or self-insured group
health plans or arrange student health
insurance coverage and that are exempt
based on their religious objections would
continue to be able to choose to invoke
the optional accommodation set forth in
the November 2018 Religious Exemption
final rules at 26 CFR 54.9815-2713A,
29 CFR 2590.715-2713A, and 45 CFR
147.131 (as applicable). These proposed
rules would confirm that this optional
accommodation for exempt religious-ob-
jector entities is available to entities that
are institutions of higher education.
While these proposed rules would
maintain the religious exemption rule,
they also would provide an independent
pathway through which women enrolled
in plans or coverage sponsored, arranged,
or provided by objecting entities can
access contraceptive services at no cost.
With respect to participants and beneficia-
ries in insured or self-insured group health
plans sponsored by an exempt entity, or
enrollees in individual health insurance
coverage (including student health insur-
ance coverage) arranged or provided by
an exempt entity, and that does not invoke
the optional accommodation (if eligi-
ble), these proposed rules would create a
pathway, independent from the employer,
group health plan, plan sponsor, or issuer,
through which individuals could obtain
at no cost from a willing provider of con-
traceptive services
67
(that meets certain
requirements), contraceptive services for
which their plan or issuer would otherwise
be required to provide coverage absent
the religious exemption. These proposed
rules refer to this pathway as the individ-
ual contraceptive arrangement. This indi-
vidual contraceptive arrangement would
be available to the participant, beneficiary,
or enrollee without the plan sponsor or
issuer having to take any action that would
facilitate the coverage to which it objects.
Simply put, the action is undertaken by
the individual, for the individual. Through
the individual contraceptive arrangement,
a provider of contraceptive services, who
provides these services at no cost to the
women receiving them, would be able to
seek reimbursement from an issuer with
whom it has a signed agreement for the
cost of providing contraceptive services to
women covered under these plans. These
proposed rules also would amend 45 CFR
156.50(d) so that a qualified health plan
(QHP) issuer that has agreed to reimburse
an eligible provider of contraceptive ser-
vices that participates in the individual
contraceptive arrangement would be eli-
gible for an adjustment to the issuer’s
federally-facilitated Exchange (FFE) or
State Exchange on the Federal platform
(SBE-FP) fee through the same mech-
anism for the user fee adjustment previ-
ously established in 45 CFR 156.50(d).
Finally, as discussed in section II.C.2
of this preamble, this proposed rule would
eliminate the exemption and the availabil-
ity of the optional accommodation for enti-
ties that object to contraceptive coverage
based on non-religious moral beliefs. As
more fully explained in that section, there
have not been a large number of entities
that have expressed a desire for an exemp-
tion based on a non-religious moral objec-
tion, the Departments are under no legal
obligation to provide such an exemption,
and RFRA would never apply to require
such an exemption. Additionally, in light
of the Supreme Court’s decision in Dobbs,
the Departments have concluded that it is
67
These proposed rules refer to providers, consistent with the proposed definition of the term “provider of contraceptive services,” as including both health care providers and facilities. This
definition is discussed later in this preamble.

August 7, 2023 440 Bulletin No. 2023–32
all the more critical now to ensure wom-
en’s access to reproductive health care and
contraceptive services without cost shar-
ing, and have determined that it is neces-
sary to provide women enrolled in plans
with respect to which the sponsor or issuer
has non-religious moral objections to con-
traceptive coverage, with such coverage
directly through their plan.
The Departments are of the view that
these proposed rules would respect the
religious objections to contraceptive cov-
erage of employers, institutions of higher
education, and health insurance issu-
ers, by allowing them to continue to rely
upon the religious exemptions, while also
advancing the public interest of ensuring
that women enrolled in such plans and
coverage have access to contraceptives
with no cost.
B. Coverage of Preventive Health
Services (26 CFR 54.9815-2713, 29 CFR
2590.715-2713, and 45 CFR 147.130)
1. Background on Requirement to Cover
Contraceptive Services
Pursuant to 26 CFR 54.9815-2713(a)
(1)(iv), 29 CFR 2590.715-2713(a)(1)
(iv), and 45 CFR 147.130(a)(1)(iv), a
group health plan, or a health insurance
issuer offering group or individual health
insurance coverage, generally must pro-
vide coverage and must not impose any
cost-sharing requirements (such as a
copayment, coinsurance, or a deductible)
for, with respect to women, such addi-
tional preventive care and screenings not
described in 26 CFR 54.9815-2713(a)(1)
(i), 29 CFR 2590.715-2713(a)(1)(i), and
45 CFR 147.130(a)(1)(i), as provided for
in comprehensive guidelines supported by
HRSA for purposes of section 2713(a)(4)
of the PHS Act. The currently applicable
68

HRSA-Supported Guidelines, as updated
on December 17, 2019, include a guide-
line that adolescent and adult women have
access to the full range of female-con-
trolled FDA-approved contraceptive
methods,
69
effective family planning prac-
tices, and sterilization procedures to pre-
vent unintended pregnancy and improve
birth outcomes.
70
The currently applica-
ble HRSA-Supported Guidelines state
that contraceptive care should include
contraceptive counseling, initiation of
contraceptive use, and follow-up care
(for example, management and evalua-
tion as well as changes to, and removal
or discontinuation of, the contraceptive
method), and that instruction in fertility
awareness-based methods, including the
lactation amenorrhea method, should be
provided for women desiring an alterna-
tive method.
The Departments have clarified in
guidance the obligation of a plan or issuer
to provide coverage of contraceptive ser-
vices in accordance with these HRSA-
Supported Guidelines. On February 20,
2013, the Departments issued FAQs about
Affordable Care Act Implementation Part
XII (FAQs Part XII) stating that the HRSA-
Supported Guidelines ensure women’s
access to the full range of FDA-approved
contraceptive methods
71
including, but
not limited to, barrier methods, hormonal
methods, and implanted devices, as well
as patient education and counseling, as
prescribed by a health care provider.
72

The FAQs further clarified that plans and
issuers may use reasonable medical man-
agement techniques to control costs and
promote efficient delivery of care, such as
covering a generic drug without cost shar-
ing and imposing cost sharing for equiva-
lent branded drugs. However, FAQs Part
XII stated that, in these instances, a plan
or issuer must accommodate any individ-
ual for whom a particular drug (generic or
brand name) would be medically inappro-
priate, as determined by the individual’s
health care provider, by having a mecha-
nism for waiving the otherwise applicable
cost sharing for the brand or non-pre-
ferred brand version. The FAQs also clar-
ified that contraceptive products that are
generally available over-the-counter are
required to be covered only if they are
both FDA-approved, cleared, or granted
and prescribed by a health care provider.
73
On May 11, 2015, the Departments
issued FAQs about Affordable Care
Act Implementation Part XXVI (FAQs
Part XXVI) clarifying that plans and issu-
ers must cover, without cost sharing, at
least one form of contraception in each
category that is identified by the FDA in its
Birth Control Guide.
74
The FAQs further
clarified that, to the extent plans and issu-
ers use reasonable medical management
techniques within a specified category
of contraception, plans and issuers must
have an easily accessible, transparent,
and sufficiently expedient exceptions pro-
cess that is not unduly burdensome on the
68
As explained in FN 4, in December 2021, HRSA approved updates to the contraception guidelines that apply to plan years (in the individual market, policy years) starting on and after
December 30, 2022. See changes at https://www.hrsa.gov/womens-guidelines.
69
The Departments note that the FDA approves, clears, and grants contraceptive products and not methods.
70
See https://www.hrsa.gov/womens-guidelines-2019.
71
The FDA does not and never has approved, granted, or cleared contraceptive methods, only contraceptive products. See FN 4, supra.
72
See Q14, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-xii.pdf and www.cms.gov/CCIIO/Resources/Fact-Sheets-and-
FAQs/aca_implementation_faqs12.html. See also FN 61.
73
Id. at Q15.
74
See Q2 and Q3, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-xxvi.pdf and https://www.cms.gov/CCIIO/Resources/
Fact-Sheets-and-FAQs/Downloads/aca_implementation_faqs26.pdf. In prior FAQs related to contraceptive coverage such as FAQs Part XXVI, the Departments referenced the FDA Birth
Control Guide as the source for categories of contraceptives that must be covered without cost sharing. The Departments now cite the HRSA-Supported Guidelines for the list of contraceptive
categories to better align with the language of the Affordable Care Act’s preventive service coverage requirements. Despite the change in wording, there is no substantive difference and the
requirements for plans and issuers remain the same. The range of identified categories of contraception in the currently applicable 2019 HRSA-Supported Guidelines include: (1) sterilization
surgery for women; (2) surgical sterilization via implant for women; (3) implantable rods; (4) copper intrauterine devices; (5) intrauterine devices with progestin (all durations and doses); (6)
the shot or injection; (7) oral contraceptives (combined pill); (8) oral contraceptives (progestin only); (9) oral contraceptives (extended or continuous use); (10) the contraceptive patch; (11)
vaginal contraceptive rings; (12) diaphragms; (13) contraceptive sponges; (14) cervical caps; (15) female condoms; (16) spermicides; (17) emergency contraception (levonorgestrel); and (18)
emergency contraception (ulipristal acetate), and additional methods as identified by the FDA. The 2021 HRSA-Supported Guidelines clarified that, in addition to the enumerated categories,
the full range of contraceptives includes any additional contraceptives approved, granted, or cleared by the FDA. The 2021 HRSA-Supported Guidelines also expanded the recommendation
to encompass contraceptives that are not female-controlled, such as male condoms (which must be covered with a prescription by plans and issuers for plan years (in the individual market,
policy years) that begin on or after December 30, 2022). The 2021 HRSA-Supported Guidelines do not include male sterilization. See https://www.hrsa.gov/womens-guidelines. See also
Preamble to Final Rules regarding coverage of certain preventive services at 78 FR 39870 (July 2, 2013).

Bulletin No. 2023–32 441 August 7, 2023
individual or provider (or other individual
acting as a patient’s authorized represen-
tative) to ensure coverage without cost
sharing of any service or FDA-approved
item within the specified category of
contraception. FAQs Part XXVI stated
that if an individual’s attending pro-
vider recommends a particular service or
FDA-approved item based on a determi-
nation of medical necessity with respect
to that individual, the plan or issuer must
cover that service or item without cost
sharing. The FAQs made clear that a plan
or issuer must defer to the determination of
the attending provider. FAQs Part XXVI
stated that medical necessity may include
considerations such as severity of side
effects, differences in permanence and
reversibility of contraceptives, and ability
to adhere to the appropriate use of the item
or service, as determined by the attending
provider. The FAQs also clarified that the
exceptions process must provide for mak-
ing a determination of the claim accord-
ing to a timeframe and in a manner that
takes into account the nature of the claim
(for example, pre-service or post-service)
and the medical exigencies involved for
a claim involving urgent care. FAQs Part
XXVI additionally clarified that a plan or
issuer cannot limit sex-specific recom-
mended preventive services based on an
individual’s sex assigned at birth, gender
identity, or recorded gender.
75
On April 20, 2016, the Departments
issued FAQs about Affordable Care
Act Implementation Part 31, Mental
Health Parity Act Implementation, and
Women’s Health and Cancer Rights Act
Implementation (FAQs Part 31) stating
that if a plan or issuer utilizes reasonable
medical management techniques within
a specified method of contraception, the
plan or issuer may develop and utilize
a standard exception form and instruc-
tions as part of its steps to ensure that it
provides an easily accessible, transparent,
and sufficiently expedient exceptions pro-
cess that is not unduly burdensome on the
individual or a provider (or other individ-
ual acting as a patient’s authorized repre-
sentative).
76
The FAQs suggested that the
Medicare Part D Coverage Determination
Request Form may serve as a model for
plans and issuers when developing a stan-
dard exception form.
77
On January 10, 2022, the Departments
issued FAQs about Affordable Care
Act Implementation Part 51, Families
First Coronavirus Response Act and
Coronavirus Aid, Relief, and Economic
Security Act Implementation (FAQs Part
51) that reiterated previously issued guid-
ance related to coverage of contraceptive
services and provided examples of prac-
tices reported to the Departments that
denied contraceptive coverage to partic-
ipants, beneficiaries, and enrollees.
78
The
FAQ also clarified that if an individual’s
attending provider determines that a par-
ticular service or FDA-approved, cleared,
or granted contraceptive product is med-
ically appropriate for such individual, a
plan or issuer must cover that service or
product without cost sharing, whether or
not the service or product is in a category
of contraception specifically identified in
the current HRSA-Supported Guidelines.
On July 28, 2022, the Departments
issued FAQs about Affordable Care Act
Implementation Part 54 (FAQs Part 54)
on additional aspects of contraceptive
coverage, reiterating and clarifying the
types of items and services required to be
covered under PHS Act section 2713 and
its implementing regulations. Specifically,
these FAQs explained that plans and issu-
ers are required to cover, without any cost
sharing, items and services that are inte-
gral to the furnishing of a recommended
preventive service, such as anesthesia
necessary for a tubal ligation procedure or
pregnancy tests needed before provision
of certain forms of contraceptives, such
as an intrauterine device (also known as
an IUD), regardless of whether the item
or service is billed separately.
79
FAQs Part
54 also addressed contraceptive products
and services that are not included in a cat-
egory of contraception described in the
HRSA-Supported Guidelines, reiterating
that plans and issuers must cover any con-
traceptive services and FDA-approved,
cleared, or granted contraceptive prod-
ucts that an individual and their attending
provider have determined to be medically
appropriate for the individual, whether or
not those services or products are specif-
ically identified in the categories listed
in the HRSA-Supported Guidelines.
80

Additionally, the FAQs reiterated the
requirement to cover FDA-approved
emergency contraception, including emer-
gency contraception that is available over-
the-counter (OTC), when prescribed, and
encouraged plans and issuers to cover
OTC emergency contraceptive products
with no cost sharing when purchased
without a prescription. The FAQs also
state that a health savings account, health
flexible spending arrangement, or health
reimbursement arrangement can reim-
burse expenses incurred for OTC contra-
ception obtained without a prescription.
81

Further, the FAQs addressed instruction
in fertility awareness-based methods and
encouraged plans and issuers to cover the
dispensing of a 12-month supply of con-
traception without cost sharing.
82

FAQs Part 54 also addressed the use
of reasonable medical management tech-
niques as applied to contraceptive prod-
ucts or services, including explaining
that plans and issuers may use reason-
able medical management techniques for
contraceptive products or services not
included in the categories described in
the HRSA-Supported Guidelines only if
75
Id. at Q5.
76
See Q2, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-31.pdf and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-
and-FAQs/Downloads/FAQs-31_Final-4-20-16.pdf.
77
A copy of the Medicare Part D Coverage Determination Request Form is available at https://www.cms.gov/Medicare/Appeals-and-Grievances/MedPrescriptDrugApplGriev/
CoverageDeterminations-.
78
See Q9, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-51.pdf and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-
and-FAQs/Downloads/FAQs-Part-51.pdf.
79
See Q1, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-54.pdf and at https://www.cms.gov/files/document/faqs-part-54.
pdf.
80
Id. at Q2.
81
Id. at Q5 and Q6.
82
Id. at Q4 and Q7.

August 7, 2023 442 Bulletin No. 2023–32
multiple, substantially similar services
or products that are not included in a
category are available and are medically
appropriate for an individual.
83
For con-
traceptive products or services included
in the categories described in the HRSA-
Supported Guidelines, the FAQs reiterate
that plans and issuers may utilize reason-
able medical management techniques only
within a specified category of contracep-
tion and only to the extent the HRSA-
Supported Guidelines do not specify the
frequency, method, treatment, or setting
for the provision of a recommended pre-
ventive service that is a contraceptive ser-
vice or FDA-approved, cleared, or granted
product.
84
The FAQs offered guidance
on how to determine whether a medical
management technique is reasonable for
purposes of the requirements under PHS
Act section 2713, including examples of
unreasonable medical management tech-
niques, such as imposing an age limit on
contraceptive coverage instead of provid-
ing these benefits to all individuals with
reproductive capacity.
85
In addition, FAQs
Part 54 offered guidance on what consti-
tutes an easily accessible, transparent, and
sufficiently expedient exceptions process
that is not unduly burdensome on the indi-
vidual or their provider and explained that
the Departments will consider an excep-
tions process to be easily accessible if plan
documentation includes relevant infor-
mation regarding the exceptions process
under the plan or coverage, including how
to access the exceptions process without
initiating an appeal pursuant to the plan’s
or issuer’s internal claims and appeals
procedures, the types of information the
plan or issuer requires as part of a request
for an exception, and contact information
for a representative of the plan or issuer
who can answer questions related to the
exceptions process.
86
The FAQs state
that a plan or issuer may not require a
participant, beneficiary, or enrollee to
appeal an adverse benefit determination
using the plan or issuer’s internal claims
and appeals process as the means for an
individual to obtain an exception.
87
As explained in FAQs Part 51 and
FAQs Part 54, the Departments have
received a number of complaints and
reports regarding potential violations
of the contraceptive coverage require-
ment. The Departments are committed
to ensuring consumers have access to
the contraceptive benefits, without cost
sharing, that they are entitled to under
the ACA and implementing regulations.
In addition to previously issued clarifica-
tions, the Departments are continuing to
assess what changes to existing regula-
tions or guidance may be needed to better
ensure individuals receive the coverage
to which they are entitled under the law
and will issue additional guidance, as war-
ranted. The Departments solicit comments
regarding whether any other clarifications
or additional guidance is needed in these
proposed rules to help ensure that women
covered under group health plans or health
insurance coverage have access to con-
traceptive services at no cost. Moreover,
stakeholders who have information
regarding potential noncompliance with
these requirements should contact the
Departments as the Departments continue
to consider what additional oversight and
enforcement actions could be taken to
ensure health plans and issuers are com-
plying with the contraceptive benefits
guaranteed under the ACA.
88
However, these proposed rules would
not alter these coverage standards appli-
cable to contraceptive services. Rather,
these proposed rules focus on the religious
and moral objections of entities otherwise
subject to those coverage standards, and
participants’, beneficiaries’, and enrollees’
access to contraceptive services without
cost sharing when their plan or cover-
age excludes coverage for these services
based on religious objections and does not
adopt the existing optional accommoda-
tion. No new Federal processes, resources,
data systems, or reporting mechanisms
are anticipated for monitoring and track-
ing entities’ objections, or the identities
of entities availing themselves of these
exemptions. Therefore, the Departments
propose only minor changes to 26 CFR
54.9815-2713, 29 CFR 2590.715-2713,
and 45 CFR 147.130.
2. Addition of the Phrase “Evidence-
Informed”
The Departments propose to add
the phrase “evidence-informed” imme-
diately before “comprehensive” in
26 CFR 54.9815-2713(a)(1)(iv),
29 CFR 2590.715-2713(a)(1)(iv), and
45 CFR 147.130(a)(1)(iv), so that the
reference in the paragraph would be to
evidence-informed comprehensive guide-
lines supported by HRSA.
Section 2713(a) of the PHS Act speci-
fies that the preventive services that must
be covered without cost sharing are: (1)
evidence-based items or services that have
in effect a rating of “A” or “B” in the cur-
rent recommendations of the United States
Preventive Services Task Force (USPSTF)
with respect to the individual involved;
(2) immunizations that have in effect
a recommendation from the Advisory
Committee on Immunization Practices
of the CDC with respect to the individual
involved; (3) with respect to infants, chil-
dren, and adolescents, evidence-informed
preventive care and screenings provided
for in the comprehensive guidelines sup-
ported by HRSA; and (4) with respect to
women, such additional preventive care
and screenings not described in the afore-
mentioned recommendations by USPSTF
83
Id. at Q3.
84
Id. at Q8.
85
Id.
86
Id. at Q9.
87
Id. at Q10.
88
As stated in FAQs Part 54, Q14, consumers who have fully-insured coverage and who have concerns about their health insurance issuer’s compliance with these requirements may contact
their State Department of Insurance (for more information, visit https://content.naic.org/state_web_map.htm). Consumers who are covered by a private-sector, employer-sponsored group
health plan and have concerns about their plan’s compliance with these requirements may contact the Department of Labor at https://www.dol.gov/agencies/ebsa/about-ebsa/ask-a-question/
ask-ebsa or by calling toll free at 1-866-444-3272. Consumers who are covered by a non-Federal public-sector employer-sponsored plan (such as a State or local government employee plan)
and have concerns about their plan’s compliance with these requirements may contact the Center for Consumer Information and Insurance Oversight at (888) 393-2789 or contraception_com-
plaints@cms.hhs.gov for further assistance with a question or issue.

Bulletin No. 2023–32 443 August 7, 2023
as provided for in comprehensive guide-
lines supported by HRSA for purposes of
section 2713(a)(4) of the PHS Act.
89
The
reference to “evidence-informed” preven-
tive care and screenings in comprehen-
sive HRSA-Supported Guidelines was
removed in the October 2017 Religious
Exemption interim final rules to align with
the statutory text.
90
However, because the
statute requires that the USPSTF recom-
mendations relate to “evidence-based”
items and services, and because the stat-
ute also requires that HRSA’s guidelines
for infants, children, and adolescents be
“evidence-informed,” the Departments
are of the view that it is consistent with
the general purpose of section 2713 of
the PHS Act that, with respect to women,
the additional preventive care and
screenings provided for in comprehen-
sive guidelines supported by HRSA be
evidence-informed.
91
Furthermore, the Departments rec-
ognize that section 2713 of the PHS Act
establishes special coverage requirements
for certain services that have been shown
by evidence to have benefits as preven-
tive services.
92
Most studies suggest that
removing cost-sharing barriers to these
items and services helps to increase access
and utilization by participants, benefi-
ciaries, and enrollees who might other-
wise delay or skip care due to financial
barriers.
93
However, coverage, without
cost sharing, of recommended preven-
tive items and services and the resulting
increases in utilization can increase costs
to consumers in the form of increased pre-
miums, unless those costs are offset by
savings. By reinstating the requirement
that the HRSA-Supported Guidelines be
evidence-informed, these proposed rules
would help ensure that plans and issuers
are required to cover recommended pre-
ventive items and services, without cost
sharing, only when evidence supports
the items’ or services’ value as preven-
tive care. Thus, this proposed amendment
would help to limit overutilization of
services and promote efficiencies in care
delivery while ensuring that participants,
beneficiaries, and enrollees have access to
critical women’s preventive services.
Additionally, this proposed change
would better reflect current practice.
HRSA’s process for developing clini-
cal guidelines for women’s preventive
services is, and has historically been,
evidence-based. In establishing the
HRSA-Supported Guidelines, HHS, act-
ing through HRSA, depends on the work
of the Women’s Preventive Services
Initiative (WPSI). According to WPSI, its
recommendations are intended to guide
clinical practice and coverage of ser-
vices for HRSA and other stakeholders.
94

The recommendation development pro-
cess of the WPSI is based on adaptation
of the eight criteria for evidence-based
clinical practice guideline development
as articulated in the 2011 report, Clinical
Practice Guidelines We Can Trust from
the National Academy of Medicine (for-
merly the Institute of Medicine [IOM]).
95

The WPSI clinical recommendations are
based on reaching a threshold of support-
ive evidence, similar to the 2011 IOM
Panel.
96
The WPSI bases recommenda-
tions on evidence of both benefits and
harms of an intervention or service and an
assessment of the balance between them.
97

As part of the WPSI process, an evidence
report on an approved topic is presented
to its multidisciplinary steering committee
(MSC), and is used as the basis for rec-
ommendation development.
98
The MSC
is then asked to consider the evidence in
depth and to formulate a recommenda-
tion.
99
Recommendations, which include
this evidence review, that are approved
by 75 percent of the MSC are submitted
to HRSA by December 1 of the given
calendar year.
100
If approved by HHS,
acting through the HRSA Administrator,
the WPSI Clinical Recommendation
is added to the HRSA-Supported
Guidelines.
101
Thus, HRSA-Supported
Guidelines, as currently developed, are
evidence-informed. The proposed addi-
tion of the term “evidence-informed”
in 26 CFR 54.9815-2713(a)(1)(iv),
29 CFR 2590.715-2713(a)(1)(iv), and
45 CFR 147.130(a)(1)(iv) would more
precisely describe the process through
which the HRSA-Supported Guidelines
are established and ensure the Guidelines
continue to be evidence-informed in the
future.
For these reasons, the Departments
propose to codify that standard. The
Departments do not anticipate that this
89
In addition, under section 3203 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act and its implementing regulations, plans and issuers must cover, without cost-sharing
requirements, any qualifying coronavirus preventive service pursuant to section 2713(a) of the PHS Act and its implementing regulations (or any successor regulations). The term “qualifying
coronavirus preventive service” means an item, service, or immunization that is intended to prevent or mitigate coronavirus disease 2019 (COVID-19) and that is, with respect to the individual
involved (1) an evidence-based item or service that has in effect a rating of “A” or “B” in the current USPSTF recommendations; or (2) an immunization that has in effect a recommendation
from ACIP (regardless of whether the immunization is recommended for routine use). On November 6, 2020, the Departments published interim final rules with a request for comment
regarding this requirement, Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency (85 FR 71142).
90
The explanation for why the reference to “evidence-informed” was removed, that is, to align with the statutory text, was provided in the November 2018 Religious Exemption final rules.
See 83 FR 57536, 57557 (November 15, 2018).
91
The Departments interpret “evidence-based” to require that the standards be based solely on scientific “evidence,” while, as discussed later in this preamble, “evidence-informed” means
that they are informed by a consideration of scientific evidence, but such evidence need not be the only basis for its standards. As the Court held in Little Sisters, HRSA is also authorized to
consider the propriety of including exemptions based upon religious or moral objections. 140 S. Ct. at 2381.
92
See section 2713(a)(1) and (3) of the PHS Act.
93
Norris, HCH. C., Richardson, HM., et al. (2021). “H. M., Benoit, M. C., Shrosbree, B., Smith, J. E., & Fendrick, A. M. (2022). Utilization Impact of Cost-Sharing Elimination for Preventive
Care Services: A Rapid Review.” Medical Care Research and Review. Available at, 79(2), 175–197. https://journals.sagepub.com/doi/pdf.org/10.1177/10775587211027372.
94
See WPSI’s Methodology Summary at https://www.womenspreventivehealth.org/wp-content/uploads/WPSI-Methodology-1.pdf.
95
Id.
96
Id.
97
Id.
98
Id.
99
Id.
100
Id.
101
Id.

August 7, 2023 444 Bulletin No. 2023–32
proposed amendment would alter the
existing processes through which the
HRSA-Supported Guidelines are devel-
oped, as these processes, as stated
previously, already include a robust con-
sideration of evidence.
The Departments seek comment on
this proposal.
3. Conforming Edits
As discussed in section II.C.2 of this
preamble, the Departments also pro-
pose to eliminate the exemption for
entities with moral objections to con-
traceptive coverage at 45 CFR 147.133,
and therefore to also make conforming
edits to remove references to 45 CFR
147.133 that appear in paragraph (a)(1)
of 45 CFR 147.130 and paragraph (a)(1)
(iv) of 26 CFR 54.9815-2713, 29 CFR
2590.715-2713 and 45 CFR 147.130.
Finally, HHS proposes to remove from
45 CFR 147.130(a)(1) references to
45 CFR 147.131 and 45 CFR 147.132.
Those references also appear in para-
graph (a)(1)(iv), for the same purpose,
and therefore are duplicative and unnec-
essary in 45 CFR 147.130(a)(1).
C. Exemptions in connection with
coverage of contraceptive services (45
CFR 147.132 and 147.133)
1. Religious Exemptions
This proposed rule would maintain the
religious exemption from the November
2018 Religious Exemption final rules.
Each of the proposed changes made to the
regulations with respect to religious objec-
tions is either technical in nature or codi-
fies the intent specified in the preamble to
the November 2018 Religious Exemption
final rules. The proposed changes in no
way narrow the scope of the exemption or
further restrict the types of religious enti-
ties that may use the exemption.
Under the regulations at 26 CFR 54.9815-
2713(a)(1)(iv), 29 CFR 2590.715-2713(a)
(1)(iv), and 45 CFR 147.130(a)(1)(iv),
a non-grandfathered group health plan,
or a health insurance issuer offering
non-grandfathered group or individual
health insurance coverage, must pro-
vide coverage for, and must not impose
any cost-sharing requirements (such as
a copayment, coinsurance, or a deduct-
ible) for, with respect to women, such
additional preventive care and screenings
as provided for in comprehensive guide-
lines supported by HRSA, subject to the
exemptions and accommodations related
to contraceptive coverage. The November
2018 Religious Exemption final rules at
45 CFR 147.132(a)(1) state that guide-
lines issued under 45 CFR 147.130(a)
(1)(iv) by HRSA must not provide for or
support the requirement of coverage or
payments for contraceptive services with
respect to a group health plan established
or maintained by an objecting entity, to
the extent of the objections specified in
the regulations.
The Departments note that the reg-
ulations require HRSA to include an
exemption in its guidelines. Although the
Supreme Court held in Little Sisters that
the ACA “gives HRSA broad discretion to
define preventive care and screenings and
to create the religious and moral exemp-
tions,” it also concluded that “the plain
language of the statute clearly allows
the Departments to create the preventive
care standards as well as the religious
and moral exemptions”
102,103
(emphasis
added). This is understandable because
the HRSA Administrator exercises author-
ity delegated from and subject to the con-
trol of the Secretary of HHS.
104
Paragraph (a)(1)(i) through (iv) of 45
CFR 147.132 lists the types of object-
ing entities that are exempted from the
HRSA-Supported Guideline requirements
that relate to the provision of contracep-
tive services. These proposed rules would
make minor technical amendments to
45 CFR 147.132(a)(1)(i). That paragraph
currently reads as follows: “A group
health plan and health insurance cover-
age provided in connection with a group
health plan to the extent the non-govern-
mental plan sponsor objects as specified
in paragraph (a)(2) of this section. Such
non-governmental plan sponsors include,
but are not limited to, the following enti-
ties –.” These proposed rules would add
the phrase “of the plan or coverage”
immediately following “sponsor” solely
for purposes of precision and clarity.
Additionally, these proposed rules would
delete the phrase “, but are not limited to,”.
This change is not intended to limit the
types of non-governmental plan sponsors
that may avail themselves of the religious
exemption as compared to the November
2018 Religious Exemption final rules, but
is rather intended as a stylistic, grammat-
ical change that is consistent with other
regulations issued by the Departments.
In addition, the proposed rules would
add language in 45 CFR 147.132(a)(1)
(iv) clarifying that, notwithstanding the
guaranteed availability requirements in
45 CFR 146.150 and 45 CFR 147.104, a
health insurance issuer may not offer cov-
erage that excludes some or all contracep-
tive services to any entity or individual
that is not an objecting entity or objecting
individual. The preamble to the November
2018 final rules specified this prohibition
with respect to exempt entities,
105
but the
provision was not included in the regu-
latory text. This prohibition would apply
to all health insurance issuers, whether or
102
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2382 (2020); see also id. at 2374-75, 2377-78 (recounting the Departments’ history of deciding what
should be included in the HRSA-Supported Guidelines).
103
Exempting the types of objecting entities listed in the November 2018 final rules from any guideline requirements that relate to the provision of contraceptive services is consistent with
the Departments’ proposed requirement (discussed in section II.B of this preamble) that the comprehensive guidelines supported by HRSA be evidence-informed. The Departments interpret
“evidence-informed” to mean that the Guidelines must be informed by a consideration of scientific evidence; however, the implementation of the requirement with respect to group health
plans or group or individual health insurance coverage can also take into account the Departments’ decisions to provide religious exemptions.
104
See 42 U.S.C. § 202 (“The Public Health Service in the Department of Health and Human Services shall be administered by the Assistant Secretary for Health under the supervision and
direction of the Secretary.”); Reorganization Plan No. 3 of 1966 § 1, 5 U.S.C. app 1 (transferring to the Secretary “all functions of the Public Health Service, of the Surgeon General of the
Public Health Service, and of all other officers and employees of the Public Health Service, and all functions of all agencies of or in the Public Health Service.”); Health Resources and
Services Administration; Statement of Organization, Functions, and Delegations of Authority, 47 F. R. 38,409 (Aug. 31, 1982). Note that HHS is the successor of the U.S. Department of
Health, Education, and Welfare, the latter of which is referenced in Reorganization Plan No. 3 of 1966 mentioned earlier in this footnote.
105
83 FR 57536, 57565.

Bulletin No. 2023–32 445 August 7, 2023
not the issuer is an exempt or non-exempt
entity. The Departments have identified
no reason to treat exempt and non-exempt
issuers differently in this regard. This pro-
hibition is important to ensure that enti-
ties and individuals that are not objecting
entities or individuals are not offered cov-
erage that excludes some or all contracep-
tive services from being provided without
cost sharing. In addition, the Departments
are of the view that this prohibition prop-
erly respects both the interests of ensur-
ing that women have the opportunity to
obtain coverage for contraceptive services
without cost sharing and the interests of
entities that have religious objections
to offering contraceptive coverage. By
allowing health insurance issuers to offer
coverage that excludes some or all such
contraceptive services to entities or indi-
viduals that have religious objections to
involvement with contraceptive services,
the November 2018 final rules provided
important protections to objecting entities
and individuals. On the other hand, by lim-
iting the individuals and entities to whom
an objecting health insurance issuer can
offer the coverage, the November 2018
final rules took critical steps to ensure that
women employed by or who are students
of entities that do not have an objection
to coverage of contraceptive services (or
women purchasing coverage in the indi-
vidual market who do not have such an
objection) continue to have access to con-
traceptive services as required under 26
CFR 54.9815-2713, 29 CFR 2590.715-
2713, and 45 CFR 147.130. These pro-
posed regulations would codify this
limitation in regulatory text.
These proposed rules include amend-
ments to reorganize the regulatory text
of 45 CFR 147.132(b) for clarity. These
proposed amendments do not affect
the exemption in the HRSA-Supported
Guidelines and in the November 2018
Religious Exemption final rules for indi-
viduals who have a religious objection to
contraception coverage. Paragraph (b) of
45 CFR 147.132 of the November 2018
Religious Exemption final rules provided
that HRSA-Supported Guidelines under
45 CFR 147.130(a)(1)(iv) must not pro-
vide for or support the requirement of
coverage or payments for contraceptive
services with respect to individuals who
so object. The paragraph also states that
nothing in 26 CFR 54.9815-2713(a)(1)
(iv), 29 CFR 2590.715-2713(a)(1)(iv), or
45 CFR 147.130(a)(1)(iv) may be con-
strued to prevent a willing health insurance
issuer offering group or individual health
insurance coverage and, as applicable,
a willing plan sponsor of a group health
plan, from offering a separate policy, cer-
tificate or contract of insurance, or a sepa-
rate group health plan or benefit-package
option, to any group health plan sponsor
(with respect to an individual) or indi-
vidual, as applicable, who objects to
coverage or payments for some or all con-
traceptive services based on sincerely held
religious beliefs. Under this exemption, if
an individual objects to some but not all
contraceptive services, but the issuer (and,
as applicable, the plan sponsor) is willing
to provide the plan sponsor or individual,
as applicable, with a separate policy, cer-
tificate or contract of insurance or a sepa-
rate group health plan or benefit package
option that omits all contraceptives, and
the individual agrees, then the exemption
applies as if the individual objects to all
contraceptive services.
In addition to the proposed amend-
ments to reorganize the regulatory text
of 45 CFR 147.132(b) for clarity, these
proposed rules would also make clear that
the ability of a willing issuer to offer a
separate policy, certificate, or contract of
insurance that omits some or all contra-
ceptive services to an objecting individual
is permitted under these proposed rules
only to the extent permitted by applicable
State law.
The Departments note that section 2713
of the PHS Act applies to a group health
plan and a health insurance issuer offer-
ing group or individual health insurance
coverage. Because group health plans and
health insurance issuers are separate legal
entities, in the case of an insured group
health plan, the requirements under sec-
tion 2713 of the PHS Act apply directly
to both the group health plan that provides
benefits through a group health insurance
policy and the health insurance issuer. In
the case of an insured student health plan,
although the institution of higher educa-
tion is not directly subject to section 2713
of the PHS Act, the institution arranges
student health insurance coverage for
students and their dependents, simi-
lar to the sponsor of a group health plan
purchasing coverage in the group market.
In recognition of the statute’s applicabil-
ity, the November 2018 final rules exempt
a group health insurance issuer and an
issuer of student health insurance cover-
age from complying with the requirement
to cover contraceptive services under sec-
tion 2713 of the PHS Act, if the sponsor
of the plan or institution of higher edu-
cation that arranges student health insur-
ance coverage is an exempt entity, even
when the issuer itself is not an exempt
entity. The Departments seek comment on
what challenges or concerns would exist
under an approach in which, if an entity
that is a group health plan sponsor, group
health plan, or institution of higher edu-
cation is an objecting entity and sponsors
or arranges for an insured group health
plan or student health insurance coverage,
the contraceptive coverage requirement
would continue to apply directly to the
health insurance issuer (that is, whether
the exemption should no longer extend to
the issuer).
Notwithstanding that the group health
plan sponsor, group health plan, or insti-
tution of higher education is an exempt
entity, under this alternative approach,
the health insurance issuer would still be
required to fulfill its separate and inde-
pendent obligation to provide contracep-
tive coverage, unless the issuer itself has
a religious objection to contraceptive
services. Requiring the health insurance
issuer to independently provide cover-
age for contraceptive services, unless it
has its own religious objection to doing
so, would ensure that women who are
in fully-insured plans sponsored or
arranged by objecting entities (and who
thus otherwise might not have access to
contraceptive services under the exist-
ing optional accommodation or might be
limited in their ability to access contra-
ceptive services through the individual
contraceptive arrangement proposed in
these rules) would have seamless access
to contraceptive coverage. Under the cur-
rent regulations, an issuer may exclude
coverage of contraceptive services if the
coverage is sponsored or arranged for by
an objecting entity. In order for the issuer
to instead provide the coverage directly to
participants, beneficiaries, and enrollees,
the Departments expect that the object-
ing entity would have to communicate its

August 7, 2023 446 Bulletin No. 2023–32
religious objections to the issuer in some
manner.
The Departments seek comment on
all aspects of this alternative approach.
Specifically, the Departments seek com-
ment on whether and how an objecting
entity that is a group health plan sponsor,
group health plan, or institution of higher
education generally communicates to
the health insurance issuer its religious
objection to providing contraceptive cov-
erage, and whether this form of commu-
nication would be sufficient for an issuer
to understand that it must fulfill its sepa-
rate and independent obligation to pro-
vide coverage of contraceptive services.
The Departments also seek comment on
whether and how the health insurance
issuer, in instances in which it does not
have its own religious objection to cov-
ering contraceptive services, should be
required to provide the contraceptive cov-
erage, and what guardrails should be in
place to separate the issuer’s coverage of
contraceptive services from the coverage
provided under the insured group health
plan or student health insurance coverage.
2. Moral Exemptions
Under 45 CFR 147.133, the HRSA-
Supported Guidelines must not provide
for or support the requirement of cover-
age or payments for contraceptive ser-
vices with respect to a group health plan
established or maintained by an objecting
organization, or health insurance coverage
offered or arranged by an objecting orga-
nization, to the extent of the entity’s objec-
tions, based on its sincerely held moral
convictions, to its establishing, maintain-
ing, providing, offering, or arranging for
(as applicable) coverage or payments for
some or all contraceptive services; or a
plan, issuer, or third party administrator
that provides or arranges such coverage
or payments. Similarly, under 45 CFR
147.133, the HRSA-Supported Guidelines
must not provide for, or support, the
requirement of coverage or payments
for contraceptive services with respect
to individuals who object to coverage or
payments for some or all contraceptive
services based on sincerely held moral
convictions.
These proposed rules would remove the
ability of entities to claim an exemption
to establishing, maintaining, providing,
offering, or arranging for contraceptive
coverage based on a non-religious moral
objection, and would remove the exemp-
tion on the basis of moral convictions
applicable to objecting individuals.
As the Departments explained in the
November 2018 Moral Exemption final
rule, and as pointed out in section I.A of
this preamble, the Departments’ adoption
of the moral exemptions was not legally
required but rather an exercise of the
Departments’ discretion to protect moral
convictions.
106
Additionally, as noted in
the November 2018 Moral Exemption
final rules, the moral exemption likely
affects very few individuals.
107
In Little
Sisters, the Supreme Court concluded that
it was appropriate for HRSA to consider
the prevalence of RFRA claims, and the
possibility of required exemptions under
RFRA, as a reason for establishing the
religious exemption.
108
The Departments
have done so, and these proposed rules
continue to provide exemptions for reli-
gious organizations, employers and insti-
tutions of higher education, and health
insurance issuers with sincerely held reli-
gious objections to providing, sponsoring,
or arranging coverage of contraceptive
services.
However, there is no such justification
for treating non-religious moral objectors
in the same manner as religious objectors.
RFRA does not require any exemption
for non-religious moral objections that
do not result in a substantial burden on
someone’s exercise of religion; therefore,
there is no prospect of successful RFRA
claims for those entities that might have
only non-religious moral objections to
contraception. Nor does the existence
of the religious exemption compel the
conferral of corresponding exemptions
based on non-religious moral objections.
The Supreme Court has held that where
“government acts with the proper purpose
of lifting a regulation that burdens the
exercise of religion, we see no reason to
require that the exemption come packaged
with benefits to secular entities.”
109
In considering whether to propose
removing the moral exemption, the
Departments considered past litigation
and settlements related to non-religious
moral objections to the requirement that
plans and issuers provide coverage of cer-
tain preventive services. The Departments
are aware that one entity, March for Life,
has obtained a permanent injunction pre-
venting the enforcement of the contra-
ceptive coverage requirement against it
because of its non-religious moral objec-
tions. The District Court for the District of
Columbia in that case reasoned that there
was no rational basis for the Departments
to distinguish between religious and
moral objections.
110
The Departments
respectfully disagree with that conclu-
sion: as noted previously, the reason for
the distinction is that the Departments
can account for the prospect of numerous
RFRA claims with respect to a religious
exemption, some of which might be mer-
itorious, but there is no analogous need to
heed the possibility of successful claims to
a non-religious moral exemption, because
there is no moral-exemption statute simi-
lar to RFRA.
The Departments are of the view
that few entities make use of the moral
exemption at this time. In the November
2018 Moral Exemption final rules, with-
out data available to estimate the actual
number of entities that would make use
of the exemption for entities with sin-
cere moral objections, the Departments
assumed that the moral exemption would
be used by nine nonprofit entities and nine
for-profit entities.
111
These assumptions
106
83 FR 57592, 57598.
107
83 FR 57592, 57627. The November 2018 Moral Exemption final rules assumed that nine nonprofit entities and nine for-profit entities would avail themselves of the moral exemption, and
estimated that approximately 15 women may incur contraceptive costs due to use of the moral exemption by for-profit entities.
108
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).
109
Corporation of Presiding Bishop of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339, 107 S. Ct. 2862 (1987).
110
March for Life v. Burwell, 128 F. Supp. 3d 116 (D.D.C. 2015).
111
83 FR 57592, 57625 (November 15, 2018).

Bulletin No. 2023–32 447 August 7, 2023
were made in the absence of data. Thus,
the Departments seek comment on how
many women lost contraceptive coverage
without cost sharing based on the moral
exemption rule, and how many would
regain access to such coverage by rescind-
ing the availability of the moral exemp-
tion. The Departments seek evidence of the
quantitative harms from the moral exemp-
tion rule. The Departments note, however,
that eliminating the moral exemption is
likely justified even if more entities than
previously estimated make use of the
moral exemption.
In the November 2018 Moral
Exemption final rules, the Departments
noted that the organizations that have sued
seeking a moral exemption have adopted
longstanding moral tenets opposed to cer-
tain FDA-approved contraceptives and
hire only employees who share this view.
Commenters on the October 2017 Moral
Exemption interim final rules made simi-
lar points and also suggested that therefore
requiring coverage of contraceptive ser-
vices by a group health plan or coverage
sponsored, arranged, or provided by an
objecting entity subject to a moral exemp-
tion would yield no benefits, because that
entity’s employees would neither want
nor use contraception. At the time, the
Departments concluded that employees
of these organizations would not benefit
from the requirement to provide contra-
ceptive services coverage.
112
Yet, although
employees of these organizations may typ-
ically share the views of the organizations,
it is not necessarily true that all employees
of these organizations share all of these
views, and employees may share these
views in general while wishing to make
personal benefits elections that arguably
conflict with certain organizational views.
This is true regardless of how many, or
how few, entities object to covering con-
traceptives based on a moral exemption.
Furthermore, dependents covered under
plans sponsored by these organizations
may not share the views of these organi-
zations and could not be required to share
these views as a condition of employment,
unless they are also employees of the
organizations. It is now the Departments’
view that the potential harm to these
individuals was not adequately consid-
ered when the Departments adopted the
November 2018 Moral Exemption final
rules. The Departments seek comment on
the potential impact to these individuals.
In the preamble to the November
2018 Moral Exemption final rules, the
Departments referred to a number of
Federal statutes demonstrating Congress’
historical desire and intent to protect
non-religious moral objections to abor-
tion and other activities. For example,
the Departments referred at length to the
Church Amendments. The preamble to the
November 2018 Moral Exemption final
rules stated:
The Church Amendments specifically
provide conscience protections based
on sincerely held moral convictions,
not just religious beliefs. Among other
things, the amendments protect the
recipients of certain Federal health
funds [under the Public Health Service
Act (42 U.S.C.A. § 201 et seq.), the
Community Mental Health Centers
Act (42 U.S.C.A. § 2689 et seq.), the
Developmental Disabilities Assistance,
or the Bill of Rights Act of 2000 (42
U.S.C.A. § 15001 et seq.)] from being
required to perform, assist, or make
their facilities available for abortions
or sterilizations if they object ‘on the
basis of religious beliefs or moral con-
victions,’ and they prohibit recipients
of certain Federal health funds from
discriminating against any person-
nel ‘because he refused to perform or
assist in the performance of such a pro-
cedure or abortion on the grounds that
his performance or assistance in the
performance of the procedure or abor-
tion would be contrary to his religious
beliefs or moral convictions.’ Later
additions to the Church Amendments
protect other conscientious objec-
tions, including some objections on
the basis of moral conviction to ‘any
lawful health service,’ or to ‘any part
of a health service program.’ In con-
texts covered by those sections of the
Church Amendments, the provision
or coverage of certain contraceptives,
depending on the circumstances, could
constitute ‘any lawful health service’ or
a ‘part of a health service program.’
113
However, the Departments now find
it significant that Congress chose not to
apply those statutory provisions to private
entities that typically do not accept funds
from or do business with the government,
that is, entities that are, in that respect,
similar to sponsors of private group
health plans.
114
The Departments also
note that the Church Amendments pri-
marily address the imposition of employ-
ment responsibilities or personal service
requirements that would infringe upon an
individual’s moral beliefs, which is not
directly relevant to an employer’s, col-
lege’s or university’s, or health insurance
issuer’s moral objections to contraceptive
coverage. The Departments also find it
significant that those statutory provisions
were enacted before the Supreme Court’s
opinion in Dobbs. Given that decision and
the consequent threat to women’s access
to abortion and their ability to exercise
control over their reproductive health care
decisions, it is now all the more critical
that women have access to contraceptive
coverage. In fact, the Departments noted
in the November 2018 Moral Exemption
final rules that “[t]he Church Amendments
were enacted in the wake of the Supreme
Court’s decision in Roe v. Wade.”
115
At that
time, Congress was acting in an environ-
ment in which there were, or were about
to be, fewer restrictions on reproductive
health.
The Departments are of the view that
non-religious moral objections to con-
traceptives are outweighed by the strong
public interest in making contraceptive
coverage as accessible to women as pos-
sible. As a result, and for the reasons
stated above, these proposed rules would
eliminate the moral exemption from the
requirement to provide contraceptive cov-
erage without cost sharing.
The Departments considered proposing
to retain the moral exemption, and apply
the individual contraceptive arrangement
112
83 FR 57536, 57602.
113
83 FR 57592, 57599 (internal citations removed).
114
As noted, the Departments also observe that the Church Amendments apply only to recipients of certain types of Federal funds, further narrowing the Church Amendments’ application.
115
Id.

August 7, 2023 448 Bulletin No. 2023–32
with respect to women enrolled in plans
or coverage that are sponsored, arranged,
or provided by non-religious moral objec-
tors, in instances where the sponsor of the
coverage was eligible for but did not avail
itself of the optional accommodation,
but decided against such a proposal. As
explained more fully in section VI.B.2 of
this preamble, it is possible that through
the individual contraceptive arrangement,
an eligible individual would need to seek
care from a provider of contraceptive
services who is not one of their regular
providers, which not only adds inconve-
nience, but also could lead to disruptions
in care. Additionally, eligible individuals
that participate in the individual contracep-
tive arrangement would have to confirm
eligibility to their provider of contracep-
tive services. The Departments are of the
view that these additional burdens are not
justified when weighed against a moral as
opposed to a religious objection.
However, given the larger number
of entities that have religious objections
to contraceptive coverage, and the fact
that RFRA in some circumstances could
require religious exemptions from such
coverage, the Departments are retaining
the religious exemption.
Correspondingly, the Departments pro-
pose to make conforming edits to remove
references to 45 CFR 147.133 (which is
where the moral exemption is codified
in the current rules) that appear in para-
graph (a)(1) of 45 CFR 147.130 and
paragraph (a)(1)(iv) of 26 CFR 54.9815-
2713, 29 CFR 2590.715-2713, and
45 CFR 147.130. The Departments seek
comments on these proposals.
The Departments acknowledge that
some objecting entities have relied on the
moral exemption, and that removing that
exemption, if finalized, would disrupt that
reliance by requiring such entities to begin
covering contraceptive services without
cost sharing. However, the Departments
are of the view that newly applying the
contraceptive coverage requirement on
non-religious moral objectors is no dif-
ferent from requiring a plan or issuer to
newly provide coverage without cost shar-
ing for a preventive service after an appli-
cable recommendation or guideline is first
established. The Departments seek com-
ment on how, and the degree to which,
reliance on the moral exemption would
be disrupted by requiring such entities
to begin covering contraceptive services
without cost sharing, and the type and
magnitude of burden that such disruption
would cause such entities.
Although the Departments are propos-
ing to eliminate the exemptions for enti-
ties with non-religious moral objections
to providing coverage of contraceptive
services, the Departments respect non-re-
ligious moral objections and also seek
comment on alternatives to fully rescind-
ing the moral exemption that would
balance the interests of entities with
non-religious moral objections against the
strong public interest of ensuring women
have access to contraceptive services
without cost sharing.
116
The Departments
also seek comment on whether such an
approach would introduce unwarranted
barriers for women to access contracep-
tive services, as compared to simply elim-
inating the moral exemption.
D. Alternate availability of certain
preventive health services (26 CFR
54.9815-2713A, 29 CFR 2590.715-
2713A, and 45 CFR 147.131)
1. Optional Accommodation for Exempt
Entities
The Departments propose several
amendments to the existing regulatory
text in 26 CFR 54.9815-2713A, 29 CFR
2590.715-2713A, and 45 CFR 147.131
regarding the optional accommodation
for exempt entities. The Departments pro-
pose to amend the language describing
which entities are eligible for the optional
accommodation to align with the scope of
entities eligible for an exemption under
these proposed rules. The Departments
also propose changes to reflect needed
updates and several minor additional
changes.
In the list of organizations eli-
gible for the optional accommoda-
tion (26 CFR 54.9815-2713A(a)(1),
29 CFR 2590.715-2713A(a)(1), and
45 CFR 147.131(c)(1)
117
), the Departments
propose to remove the cross-reference to
45 CFR 147.133(a)(1)(i) or (ii) because,
as discussed in section II.C.2 of this pre-
amble, these proposed rules would elim-
inate the moral exemption and entities
that object to coverage of contraceptive
services based on non-religious moral
objections would no longer be exempt
entities. Thus, if finalized, these pro-
posed rules would not allow these enti-
ties to avail themselves of the optional
accommodation.
In the same paragraph, the Departments
propose to add a cross-reference to
45 CFR 147.132(a)(1)(iii), in addi-
tion to the existing cross-references to
45 CFR 147.132(a)(1)(i) and (ii), to clar-
ify that the existing optional accommo-
dation for objecting entities is available
to objecting entities that are institutions
of higher education. The preamble to the
November 2018 Religious Exemption
final rules stated that the optional accom-
modation is available to objecting entities
that are institutions of higher education,
118

but the text of the November 2018
Religious Exemption final rules inadver-
tently did not specify that the optional
accommodation is available to these enti-
ties. These proposed rules would also add
a rule of construction to the HHS regula-
tion at 45 CFR 147.131 as redesignated
paragraph (f) to clarify that in the case
of student health insurance coverage,
45 CFR 147.131 would be applicable in
the same manner as to group health insur-
ance coverage provided in connection
with a group health plan established or
maintained by a plan sponsor that is an
116
While no other Federal law may require the Departments to provide for an across-the-board moral exemption via regulation, Federal law continues to protect the exercise of convictions in
certain specific contexts covered by the respective statutory text. See, for example, the Church Amendments at 42 U.S.C. 300a-7(c)(2) and (d) (requiring certain covered entities to provide
for persons’ lawful exercise of conscience with respect to certain services or programs, which may include contraceptive services or coverage).
117
In 45 CFR 147.131, these proposed rules would eliminate reserved paragraphs (a) and (b), and redesignate paragraph (c) as paragraph (a).
118
See 83 FR 57536, 57564. (“These rules treat the plans of institutions of higher education that arrange student health insurance coverage similarly to the way in which the rules treat the
plans of employers. These rules do so by making such student health plans eligible for the expanded exemptions, and by permitting them the option of electing to utilize the accommodation
process.”)

Bulletin No. 2023–32 449 August 7, 2023
employer, and references to “plan partic-
ipants and beneficiaries” would be inter-
preted as references to student enrollees
and their covered dependents.
The Departments also propose tech-
nical amendments to the regulatory text
to remove the transitional rule provi-
sion, which was added in the November
2018 Religious Exemption final rules. In
instances where an issuer or third party
administrator makes separate payments for
contraceptive services through the optional
accommodation process on January 14,
2019, this transitional rule permitted the
eligible organization to give accelerated
notice of revocation of the accommoda-
tion. The period during which this accel-
erated notice process was permitted has
expired. In addition, the Departments do
not see a reason to create a new opportu-
nity for such an accelerated notice, since
all entities currently availing themselves
of the optional accommodation are doing
so voluntarily. Therefore, the Departments
propose technical amendments to remove
the transitional rule. The Departments do
not propose to modify the generally appli-
cable rule of revocation, which requires an
eligible organization’s revocation of use
of the optional accommodation process to
be effective no sooner than the first day of
the first plan year that begins on or after 30
days after the date of the revocation.
Additionally, the Departments propose
to replace the cross-reference to section
2719A of the PHS Act with a cross-refer-
ence to section 9822 of the Code, section
722 of ERISA, and section 2799A-7 of the
PHS Act, in 26 CFR 54.9815-2713A(c)(2)
(ii), 29 CFR 2590.715-2713A(c)(2)(ii),
and redesignated 45 CFR 147.131(b)(2)
(ii). The current cross-reference estab-
lishes that, when an insured group health
plan avails itself of the optional accom-
modation, its health insurance issuer must
provide separate payments for contracep-
tive services in a manner that is consistent
with, among others, the patient protection
requirements under section 2719A of the
PHS Act. Section 2719A of the PHS Act
provided that if a plan or issuer requires
or provides for designation by a partici-
pant, beneficiary, or enrollee of a partic-
ipating primary care provider, individuals
may designate any participating primary
care providers available to accept them,
including pediatricians, and prohibits the
plan or issuer from requiring authorization
or referral for obstetrical or gynecological
care. Section 102 of title I of Division BB
of the Consolidated Appropriations Act,
2021 (CAA)
119
amended section 2719A of
the PHS Act to include a sunset provision
effective for plan years beginning on or
after January 1, 2022, when the new pro-
tections under the No Surprises Act took
effect. Additionally, the No Surprises Act
recodified the patient protections regard-
ing choice of health care professional from
section 2719A(a), (c), and (d) of the PHS
Act at new section 9822 of the Code, sec-
tion 722 of ERISA, and section 2799A–7
of the PHS Act.
120
The Departments are
of the view that it would be appropriate
to continue to require that, when mak-
ing separate payments for contraceptive
services through the optional accommo-
dation for insured plans, an issuer must
make those payments in a manner that is
consistent with these patient protections.
The Departments seek comment on the
circumstances under which contraceptive
services would constitute emergency ser-
vices,
121
as well as whether to continue to
apply the protections for emergency ser-
vices, which were set forth under section
2719A of the PHS Act, and subsequent
to that provision sunsetting, are now set
forth in section 2799A-1 of the PHS Act
but include different such protections, to
issuers making separate payments for con-
traceptive services through the optional
accommodation for insured plans.
Redesignated paragraphs 26 CFR
54.9815-2713A(d), 29 CFR 2590.715-
2713A(d), and 45 CFR 147.131(c) set
forth model language for the written
notice of the availability of separate
payments for contraceptive services
with respect to eligible organizations
exercising the optional accommodations
set forth in 26 CFR 54.9815-2713A(b) and
(c), 29 CFR 2590.715-2713A(b) and (c),
and 45 CFR 147.131(b). Under current
paragraphs 26 CFR 54.9815-2713A(d),
29 CFR 2590.715-2713A(d), and 45
CFR 147.131(e), the language explains
to a participant or beneficiary that a plan
sponsor has certified that the plan or cov-
erage qualifies for an accommodation
with respect to the requirement to cover
all FDA-approved contraceptive services
for women, as prescribed by a health
care provider, without cost sharing. The
Departments propose to redesignate those
paragraphs and amend the language that
refers to FDA-approved contraceptive
services to refer to all FDA-approved,
cleared, or granted contraceptives. This
proposed change is consistent with the fact
that FDA does not approve contraceptive
“services,” but rather contraceptive prod-
ucts, which may be approved, cleared, or
granted, depending on the product type.
The Departments also propose sev-
eral minor additional grammatical, con-
forming, and technical changes. In 26
CFR 54.9815-2713A(b)(1)(ii)(B) and (c)
(1)(ii)(B), 29 CFR 2590.715-2713A(b)
(1)(ii)(B) and (c)(1)(ii)(B), and
45 CFR 147.131(d)(1)(ii)(B) of the cur-
rent rules, which are redesignated as
26 CFR 54.9815-2713A(b)(1)(ii)(B) and
(c)(1)(ii)(C), 29 CFR 2590.715-2713A(b)
(1)(ii)(B) and (c)(1)(ii)(C), and
45 CFR 147.131(b)(1)(ii)(B) in these
proposed rules, the Departments pro-
pose to update the reference to a student
health insurance plan to refer to student
health insurance coverage, to be consis-
tent with the terminology used in 45 CFR
147.145(a). The Departments also pro-
pose to add a reference to section 414(e)
of the Code when referring to church
plans, to fully account for the fact that
the Internal Revenue Service and the
Department of the Treasury regulate such
plans. In addition, in what is proposed
to be redesignated as 26 CFR 54.9815-
2713A(f), 29 CFR 2590.715-2713A(f),
119
Title I of Division BB of the CAA is also known as the No Surprises Act.
120
Section 2719A(b) of the PHS Act and the Departments’ implementing regulations established requirements applicable to group health plans and health insurance issuers offering group or
individual health insurance related to the coverage of emergency services, which are also covered under the CAA’s sunset provision. The No Surprises Act added section 9816 of the Code,
section 716 of ERISA, and section 2799A-1 of the PHS Act, which expand the patient protections related to emergency services under section 2719A of the PHS Act, in part, by providing
additional consumer protections related to balance billing.
121
The term emergency services is defined in regulations at 26 CFR 54.9816-4T(c)(2), 29 CFR 2590.716-4(c)(2), and 45 CFR 149.110(c)(2).

August 7, 2023 450 Bulletin No. 2023–32
and 45 CFR 147.131(e) (which are
paragraphs 26 CFR 54.9815-2713A(e),
29 CFR 2590.715-2713A(e), and
45 CFR 147.131(f) in current regulations),
the Departments propose non-substantive
amendments for clarity.
These proposed rules retain the
optional accommodation process for
self-insured group health plans under
26 CFR 54.9815-2713A(b) and 29 CFR
2590.715-2713A(b). Under that optional
accommodation, an eligible organization
is not required to contract, arrange, pay,
or provide a referral for the delivery of
contraceptive benefits in cases where the
organization objects to providing con-
traception coverage, but does not object
to having third parties (such as a third
party administrator) provide for the ben-
efits. The Department of the Treasury
and DOL propose to make minor amend-
ments to the existing regulatory text
in 26 CFR 54.9815-2713A(b) and 29
CFR 2590.715-2713A(b) regarding the
optional accommodation for exempt enti-
ties that provide benefits on a self-insured
basis. The proposed amendments make
conforming edits to paragraphs (b)(1)(ii)
and (b)(1)(ii)(B) that remove references
to 45 CFR 147.133 and add language to
paragraph (b)(1)(ii) noting that third party
administrators provide administrative
services in connection with the plan con-
sistent with the parallel optional accom-
modation for insured plans. The proposed
rules would also add a reference to State
Exchange on the Federal platform user
fees to paragraph (b)(3) to be consistent
with amendments made to the user fee
provisions in 45 CFR 156.50(d).
122
The Departments seek comment on all
aspects of these proposed amendments.
2. Individual Contraceptive Arrangement
for Eligible Individuals
By making the accommoda-
tions in 26 CFR 54.9815-2713A,
29 CFR 2590.715-2713A, and 45 CFR
147.131 optional in the November 2018
final rules, the Departments responded
to litigants’ concerns that some object-
ing entities believed the accommodations
under the prior rules left the objecting
entity complicit in contracting, arrang-
ing, paying, or providing a referral for
the contraceptive coverage. Those rules
left the accommodation process intact as
a voluntary option that objecting entities
could avail themselves of if they did not
object to the accommodation. However,
the November 2018 final rules had the
adverse effect of failing to provide women
enrolled in a health plan established or
maintained or arranged by an objecting
entity with an alternative mechanism for
obtaining contraceptive services with no
cost sharing if the entity did not choose to
use the accommodation. Additionally, the
November 2018 final rules did not require
objecting entities or their health plans to
notify eligible individuals that the cover-
age offered excludes contraceptive ser-
vices. The Departments have determined
that it is necessary to provide these women
with an alternative pathway to obtaining
contraceptive services at no cost (other
than the premium or contribution paid for
health coverage) because of the public
health interest in ensuring women’s access
to reproductive health care and contracep-
tive services without cost sharing, par-
ticularly in light of the Supreme Court’s
opinion in Dobbs v. Jackson Women’s
Health Organization. Specifically, the
Departments propose to amend 26 CFR
54.9815-2713A, 29 CFR 2590.715-
2713A, and 45 CFR 147.131 to create an
individual contraceptive arrangement for
women enrolled in a group health plan
or health insurance coverage sponsored,
offered, or arranged by an objecting entity
that does not provide contraceptive cover-
age and that elects not to use the existing
optional accommodations with respect
to some or all contraceptive services. By
enabling individuals to directly receive
contraceptive services at no cost, this
proposal would provide them with access
to all contraceptive services the plan or
coverage would otherwise be required to
cover, absent the exemption. Critically,
this would be accomplished independent
of any action by the objecting entity,
which would not be required to take any
steps to facilitate this provision of contra-
ceptive services.
Under these proposed rules, an eligible
individual may voluntarily, and indepen-
dent of any actions by the objecting entity,
elect this individual contraceptive arrange-
ment. Under proposed 26 CFR 54.9815-
2713A(e), 29 CFR 2590.715-2713A(e),
and 45 CFR 147.131(d), a provider of
contraceptive services would furnish con-
traceptive services to the eligible individ-
ual without imposing any fee or charge
of any kind, directly or indirectly, on the
eligible individual or any other entity for
the cost of the items and services or any
portion thereof.
123
The provider of con-
traceptive services would be permitted to
seek reimbursement from a participating
issuer as defined under 45 CFR 156.50,
124

with which the provider has a signed
agreement for the costs of providing these
contraceptive services. The Departments
expect that administrative costs incurred
by participating providers of contracep-
tive services would be included in the
amounts they submit to issuers for reim-
bursement. The issuer in turn would be
able to receive a reduction equal to this
amount (plus an administrative allowance
for costs and margin) to the issuer’s FFE
or SBE-FP user fees pursuant to 45 CFR
156.50(d). See section III of this preamble
for a discussion of how a provider of con-
traceptive services would be reimbursed
through such an adjustment.
Participation in an individual contra-
ceptive arrangement would be entirely
voluntary for the provider of contra-
ceptive services. A willing provider of
122
In 2021, HHS amended 45 CFR 156.50(d) to clarify that issuers participating through SBE-FPs are eligible to receive adjustment to their Federal user fee amounts that reflect the value
of contraceptive claims they have reimbursed to third-party administrators (TPAs) that have provided contraceptive coverage on behalf of an eligible employer. 86 FR 24140, 24229 (May
5, 2021).
123
Under these proposed rules, the provider of contraceptive services would furnish contraceptive services to the eligible individual in a manner that is totally independent of any costs that
are associated with a group health plan or health insurance coverage sponsored, arranged, or provided by an objecting entity. The Departments note that, because the individual contraceptive
arrangement would be completely separate from a plan or coverage sponsored, arranged, or provided by an objecting entity, the provision of the proposed rules that would require a provider
of contraceptive services to furnish contraceptive services to eligible individuals without imposing any fee or charge of any kind would mean that the provider of contraceptive services
would not collect any amounts that would typically be associated with an eligible individual’s plan or coverage, such as any premiums, cost-sharing requirements, or other similar amounts.
124
45 CFR 156.50 defines participating issuer as any issuer offering a plan that participates in the specific function that is funded by user fees. This term may include: health insurance issuers,
QHP issuers, issuers of multi-State plans (as defined in 45 CFR 155.1000(a), issuers of stand-alone dental plans (as described in 45 CFR 155.1065), or other issuers identified by an Exchange.

Bulletin No. 2023–32 451 August 7, 2023
contraceptive services would also be
reimbursed for items and services that
are integral to the furnishing of the con-
traceptive service, for an amount agreed
to by the provider and eligible issuer,
regardless of whether the provider would
typically bill for the item or service sep-
arately. Reimbursing for the items and
services that are integral to the furnishing
of the contraceptive service, regardless
of whether the provider would typically
bill for the item or service separately, is
consistent with how the Departments have
interpreted section 2713 of the PHS Act as
applied to group health plans and health
insurance issuers offering group or indi-
vidual health insurance coverage.
125
For purposes of this individual con-
traceptive arrangement, these proposed
rules would define an eligible individual
under 26 CFR 54.9815-2713A(a)(3), 29
CFR 2590.715-2713A(a)(3), and 45 CFR
147.131(a)(3) as a participant or bene-
ficiary enrolled in a group health plan
established or maintained, or an enrollee
in individual health insurance coverage
offered or arranged, by an objecting entity
described in 45 CFR 147.132(a) that, to the
extent eligible, has not invoked the accom-
modation, and who confirms to a provider
of contraceptive services (that agrees to
meet certain criteria) that the individual is
enrolled in a group health plan or group
or individual health insurance coverage
sponsored, provided, or arranged by an
objecting entity that does not provide cov-
erage for all or a subset of contraceptive
services as generally required for non-ob-
jecting entities under 26 CFR 54.9815-
2713(a)(1)(iv), 29 CFR 2590.715-2713(a)
(1)(iv), and 45 CFR 147.130(a)(1)(iv).
The individual may make this confir-
mation by producing any documentation
that may include the relevant informa-
tion, such as a summary of benefits (for
example, a summary of benefits and cov-
erage (SBC) that includes the relevant
information), or through other methods,
such as by providing an attestation.
126

The provider of contraceptive services
would have discretion on choosing what
confirmation method to accept. The
Departments seek comment on addi-
tional sources of information that partic-
ipants, beneficiaries, and enrollees could
provide for this confirmation, including
what documentation plans and issuers
may already be providing to participants,
beneficiaries, and enrollees independent
of any Federal requirements.
Excluded from the proposed definition
of eligible individual are a participant or
beneficiary enrolled in a group health plan
established or maintained, or an enrollee
in individual health insurance coverage
offered or arranged, by an objecting entity
that has invoked the optional accommoda-
tion. The Departments do not expect many
such participants, beneficiaries, or enroll-
ees would avail themselves of the indi-
vidual contraceptive arrangement, even
if they were eligible, as it would likely
be easier for them to obtain contracep-
tive services through the accommodation.
However, the Departments recognize that
it may be challenging for an individual
or a provider of contraceptive services to
distinguish between an eligible individual,
as defined under these proposed rules, and
a participant or beneficiary enrolled in a
group health plan established or main-
tained, or an enrollee in individual health
insurance coverage offered or arranged,
by an objecting entity that has invoked the
optional accommodation. Therefore, the
Departments seek comment on whether
these individuals should be included
within the definition of eligible individual.
The Departments acknowledge
that grandfathered health plans are not
required to comply with section 2713 of
the PHS Act, including the implementing
regulations. However, because there are
relatively few grandfathered plans and
coverage still in existence,
127
and these
plans and issuers providing grandfathered
coverage may voluntarily, or as required
by State law, provide contraceptive cov-
erage, the Departments are not proposing
to apply the proposed individual contra-
ceptive arrangement to women enrolled in
grandfathered plans.
These proposed rules, if finalized,
would not place any additional obligations
on a plan or health insurance issuer. Under
this individual contraceptive arrangement,
an exempt entity would not have to pro-
vide any verbal or written documenta-
tion to an eligible individual, a provider
of contraceptive services, a health insur-
ance issuer, a third party administrator, a
government agency, or any other person
or entity, that an exempt entity would not
already be required to provide by virtue of
sponsoring, arranging, or offering health
coverage in general.
128
Under these pro-
posed rules, an eligible individual may
voluntarily, without the objecting enti-
ty’s knowledge, and independent of any
actions by the objecting entity, elect this
individual contraceptive arrangement.
The individual contraceptive arrange-
ment option would therefore operate inde-
pendently of any health plan or health
insurance arrangement that involves
or implicates an objecting entity. The
Departments seek comment on adequate
ways to ensure individuals are aware of
the individual contraceptive arrangement,
125
85 FR 71142, 71174. See also FAQs about Affordable Care Act Implementation Part 54 (July 28, 2022), Q1, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-ac-
tivities/resource-center/faqs/aca-part-54.pdf and https://www.cms.gov/files/document/faqs-part-54.pdf.
126
The Departments are proposing to add sample attestation language for this purpose to the regulations at 26 CFR 54.9815-2713A(e)(2), 29 CFR 2590.715-2713A(e)(2), and 45 CFR
147.131(d)(2).
127
In 2020, the Departments estimated that there are 2.5 million ERISA-covered plans offered by private employers that cover an estimated 136.2 million participants and beneficiaries in those
private employer-sponsored plans. Similarly, the Departments estimated that there were 84,087 State and local governments that offer health coverage to their employees, with an estimated
32.8 million participants and beneficiaries in those employer-sponsored plans. The Departments estimated that, of firms offering health benefits, 400,000 sponsor ERISA-covered plans that
are grandfathered (or include a grandfathered benefit package option) and cover 19.1 million participants and beneficiaries. The Departments further estimated there are 13,454 State and local
governments offering at least one grandfathered health plan and 4.6 million participants and beneficiaries covered by a grandfathered State or local government plan. See 85 FR 81097, 81108.
The Departments expect that those numbers are now somewhat lower.
128
However, these proposed rules would not prohibit an eligible individual from requesting that the plan or coverage provide documentation showing the plan or coverage does not cover all
or a subset of contraceptive services as generally required under 26 CFR 54.9815-2713(a)(1)(iv), 29 CFR 2590.715-2713(a)(1)(iv), or 45 CFR 147.130(a)(1)(iv). The Departments note that
a plan or coverage would be required to comply with generally applicable disclosure requirements. For example, if an individual requests that the plan or coverage provide them with a copy
of their SBC, the plan or coverage would be required to furnish the SBC in accordance with existing regulations. See 26 CFR 54.9815-2715(a)(1), 29 CFR 2590.715-2715(a)(1), and 45 CFR
147.200(a)(1). Additionally, group health plans covered by ERISA are required to provide a summary plan description to participants and beneficiaries that describe, in terms understandable
to the average plan participant, the rights, benefits, and responsibilities of participants and beneficiaries. See ERISA section 102 and 29 CFR 2520.104b-2.

August 7, 2023 452 Bulletin No. 2023–32
can learn if they are eligible, and can find
participating providers to access contra-
ceptive services at no cost.
These proposed rules would also add
a definition of provider of contraceptive
services for purposes of 26 CFR 54.9815-
2713A, 29 CFR 2590.715-2713A, and 45
CFR 147.131 in new paragraphs 26 CFR
54.9815-2713A(g)(2), 29 CFR 2590.715-
2713A(g)(2), and 45 CFR 147.131(g)(2).
The term “provider of contraceptive ser-
vices” would mean any health care pro-
vider (including a clinician, pharmacy,
or other facility) acting within the scope
of that provider’s license, certification,
or authority under applicable law to pro-
vide contraceptive services. This defini-
tion is intended to be interpreted broadly
to encompass any provider or facility
authorized to provide any contraceptive
services, including when provided via
telehealth or mail. The Departments spe-
cifically seek comment on whether there
are any entities that would be equipped
to facilitate the individual contraceptive
arrangement that would not be included
within this definition.
The Departments acknowledge that this
proposal would not achieve the Women’s
Health Amendment’s goal of ensuring
that women have seamless cost-free cov-
erage of contraceptives, because the indi-
vidual contraceptive arrangement would
require some additional action by the
affected women and could require them
to obtain contraceptive care from pro-
viders other than those from whom they
typically receive women’s health care. As
the Departments have explained, how-
ever, they have been unable to identify a
mechanism that would achieve seamless
coverage while addressing the religious
objections to the contraceptive coverage
requirement and the existing accommoda-
tions as well as resolving the long-running
litigation.
129
Nonetheless, the proposed
individual contraceptive arrangement
would be more effective than the existing
regulations at advancing the goals of the
Women’s Health Amendment, because the
current regulations provide no pathway to
obtain contraceptive services at no cost
for women whose employers, institutions
of higher education, or health insurance
issuers exercise a religious exemption
and either opt not to or are not eligible to
invoke the accommodation.
The Departments propose to cod-
ify the proposed individual contracep-
tive arrangement in the same section of
the regulations as the existing optional
accommodation for exempt entities, as
both would operate to ensure that women
enrolled in coverage sponsored or offered
or arranged by an exempt entity have
access to contraceptive services otherwise
required to be covered, without cost shar-
ing. Therefore, the Departments propose
to change the titles of 26 CFR 54.9815-
2713A, 29 CFR 2590.715-2713A, and 45
CFR 147.131 from “Accommodations in
connection with coverage of certain pre-
ventive health services,” to “Alternate
availability of certain preventive health
services.”
The Departments seek comment on all
aspects of these proposed amendments.
III. Overview of Proposed Rules –
Department of Health and Human
Services
Financial Support (45 CFR 156.50)
To facilitate the proposed individual
contraceptive arrangement, HHS proposes
to amend 45 CFR 156.50(d) to allow a
participating issuer
130
on the FFE or an
SBE-FP to receive an FFE or SBE-FP user
fee adjustment for reimbursing a provider
of contraceptive services for the costs of
providing contraceptive services pursuant
to the individual contraceptive arrange-
ment.
131
Additionally, for purposes of 45
CFR 156.50(a), HHS proposes that “pro-
vider of contraceptive services” would
have the same meaning as “provider of
contraceptive services” under proposed
45 CFR 147.131(g)(2). Under this defini-
tion, a provider of contraceptive services
would not be required to be located in an
FFE or SBE-FP State, but a participating
issuer would need to be subject to FFE or
SBE-FP user fees to be eligible to receive
a user fee adjustment. In other words, a
provider of contraceptive services would
be able to seek reimbursement from a par-
ticipating issuer in another State.
To summarize, a provider of contra-
ceptive services that incurs costs for fur-
nishing contraceptive services pursuant to
the individual contraceptive arrangement
would be able to seek reimbursement of
these costs from a participating issuer,
with the issuer in turn receiving a reduc-
tion equal to this amount, plus an admin-
istrative allowance for costs and margin,
of the issuer’s FFE or SBE-FFP user fees
as discussed in detail in this section of the
preamble:
• In order to receive reimburse-
ment for contraceptive services provided
pursuant to the individual contraceptive
arrangement, a provider of contraceptive
services would be required to enter into
a signed agreement with a participating
issuer to reimburse the provider for the
cost of furnishing contraceptive services.
• For the participating issuer to
receive the user fee adjustment and for
the provider of contraceptive services to
receive reimbursement from the partic-
ipating issuer as a result of the partici-
pating issuer’s user fee adjustment, the
participating issuer would be required to
submit to HHS: (1) a copy of the signed
agreement it entered into with the provider
of contraceptive services; (2) information
that identifies the provider of contracep-
tive services it reimbursed or will reim-
burse; and (3) the total dollar amount
129
See FAQs Part 36, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-36.pdf and https://www.cms.gov/CCIIO/Resources/
Fact-Sheets-and-FAQs/Downloads/ACA-FAQs-Part36_1-9-17-Final.pdf.
130
Under 45 CFR 156.50(a), a participating issuer means any issuer offering a plan that participates in the specific function that is funded by user fees. This term may include: health insur-
ance issuers, QHP issuers, issuers of multi-State plans (as defined in 45 CFR 155.1000(a)), issuers of stand-alone dental plans (as described in 45 CFR 155.1065), or other issuers identified
by an Exchange. The references to “participating issuer” in this section would mean a participating issuer on the FFE or an SBE-FP.
131
HHS notes it is not proposing to change the substantive requirements on participating issuers and third party administrators when participating issuers make payments to third party admin-
istrators, nor is HHS proposing to make substantive changes related to information and documentation requirements on third party administrators and participating issuers that have made
arrangements with each other. To conform with proposed changes for the individual contraceptive arrangement, HHS would amend 45 CFR 156.50 to include references to the individual
contraceptive arrangement and re-designate paragraphs to include references to the individual contraceptive arrangement provisions. These changes are discussed in more detail in the fol-
lowing paragraphs.

Bulletin No. 2023–32 453 August 7, 2023
of the payments it made or will make to
reimburse the provider of contraceptive
services for the costs of furnishing con-
traceptive services to eligible individuals
pursuant to the individual contraceptive
arrangement.
• If the necessary conditions
are met, the participating issuer would
receive an adjustment to its user fee obli-
gation equal to the total amount of costs
of furnishing contraceptive services for
each provider of contraceptive services in
accordance with the individual contracep-
tive arrangement, plus an allowance for
administrative costs and margin.
132
If the
adjustment exceeds the user fees owed in
the month of the initial adjustment or in
any later month, any excess adjustment
would be carried over to later months.
• Under these proposed rules and
the current regulation, the administra-
tive allowance—which would be at least
10 percent of the total dollar amount of the
costs of furnishing contraceptive services
pursuant to the individual contraceptive
arrangement
133
—would be specified by
HHS in the annual HHS notice of benefit
and payment parameters or other rulemak-
ing. If the administrative allowance for
an applicable year is not specified in that
year’s HHS notice of benefit and payment
parameters or other rulemaking, then the
administrative allowance would be the
amount last specified in rulemaking.
• The participating issuer may pay
the provider of contraceptive services as
soon as the contraceptive services are
delivered pursuant to the individual con-
traceptive arrangement, but the participat-
ing issuer would be required to pay the
provider, no later than within 60 days of
receipt of any adjustment of a user fee. No
payment would be required with respect
to the allowance for administrative costs
and margin. This proposal sets the latest
date on which the participating issuer
must reimburse the provider of contra-
ceptive services. This proposal would
not preclude the participating issuer and
provider of contraceptive services from
agreeing that the participating issuer
would reimburse the provider at more fre-
quent intervals, such as on a monthly or
quarterly basis, or upfront for the full cost
of services provided during the applicable
benefit year rather than in the following
benefit year in which the issuer receives
the monthly user fee adjustment.
Each of the items from the preced-
ing list laying out this proposed user fee
adjustment is discussed in more detail in
the following paragraphs.
HHS proposes to add paragraph (d)
(1)(iii) to 45 CFR 156.50 to require that
a provider of contraceptive services and
a participating issuer enter into an agree-
ment for that issuer to seek a user fee
adjustment as a result of reimbursing the
provider’s costs pursuant to the individual
contraceptive arrangement. An agreement
between the participating issuer and the
provider of contraceptive services would
be a condition of participation in the indi-
vidual contraceptive arrangement and
required to receive reimbursement for the
costs of furnishing contraceptive services.
HHS proposes to amend 45 CFR
156.50(d)(2)(i) to establish the informa-
tion and documentation a participating
issuer that is eligible for a user fee adjust-
ment must provide to HHS to receive a
user fee adjustment as a result of reim-
bursement of (or intention to reimburse
pursuant to proposed 45 CFR 156.50(d)
(5)) the cost of furnishing contraceptive
services incurred by a provider of contra-
ceptive services. HHS proposes to amend
45 CFR 156.50(d)(2)(i)(A) to require that,
to receive a user fee adjustment under the
individual contraceptive arrangement, a
participating issuer must submit to HHS
identifying information on each provider
of contraceptive services it reimbursed
(or will reimburse pursuant to proposed
45 CFR 156.50(d)(5)). Additionally, HHS
proposes to add 45 CFR 156.50(d)(2)(i)
(D) and (E) to require the participating
issuer offering a plan through the FFE or
an SBE-FP to submit: (1) documentation
that demonstrates that the participating
issuer and the provider of contraceptive
services have entered into an agreement
through which the participating issuer
would reimburse the provider for the costs
of contraceptive services furnished under
the individual contraceptive arrangement;
and (2) the total dollar amount of the pay-
ments the participating issuer made (or
will make) to reimburse the provider for
the costs of furnishing those contraceptive
services already provided under the indi-
vidual contraceptive arrangement.
To facilitate the individual contra-
ceptive arrangement, HHS proposes that
providers of contraceptive services and
participating issuers, as a condition for
participating in this individual contracep-
tive arrangement, must enter into a signed
agreement and that the participating issuer
must submit a copy of this agreement to
HHS to satisfy the proposed submission
requirements at 45 CFR 156.50(d)(2)
(i)(A) and (D). HHS proposes that this
signed agreement must include identify-
ing information of the provider of con-
traceptive services, such as the name and
contact information for the provider’s
practice or facility or, if applicable, the
provider’s National Provider Identifier.
134

In addition, the agreement would need
to include the signatures of individuals
with the authority to legally and finan-
cially bind the provider of contraceptive
services and the participating issuer. The
agreement would need to demonstrate
that the provider of contraceptive ser-
vices and participating issuer have entered
into an arrangement through which the
participating issuer will reimburse the
provider for the costs of furnishing con-
traceptive services in accordance with
the individual contraceptive arrangement
at proposed 26 CFR 54.9815-2713A(e),
29 CFR 2590.715-2713A(e), and
132
The allowance for administrative costs and margin is intended to cover a participating issuer’s administrative costs associated with reimbursing providers of contraceptive services, such
as the costs associated with entering into arrangements with such providers and submitting documentation to seek a reduction in the user fee obligation, as well as provide a margin to ensure
that participating issuers receive appropriate compensation for providing such reimbursements. See 78 FR 39870, 39884.
133
Pursuant to 45 CFR 156.50(d)(3)(ii), the minimum administrative allowance permitted for the existing third party administrator optional accommodation is also at least 10 percent of the
total dollar amount of payments for contraceptive services. See 78 FR 39870, 39885. Per the HHS Notice of Benefit and Payment Parameters for 2015 (“2015 Payment Notice”), HHS set the
administrative allowance for the existing third party administrator optional accommodation at 15 percent. See 79 FR 13743, 13809 (March 11, 2014).
134
See “NPI: What You Need to Know” (March 2021), available at https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/Downloads/NPI-What-
You-Need-To-Know.pdf.

August 7, 2023 454 Bulletin No. 2023–32
45 CFR 147.131(d), and that the participat-
ing issuer will seek a user fee adjustment
for the amount of those eligible costs (plus
an administrative allowance as specified
at proposed 45 CFR 156.50(d)(3)(iii)).
HHS notes that other terms of the agree-
ment between a provider of contraceptive
services and a participating issuer, such as
the period of time over which the agree-
ment is effective, are at the discretion of
the participating issuer and provider. HHS
also notes that, to facilitate the individual
contraceptive arrangement, a single par-
ticipating issuer may enter into separate
agreements with more than one provider
of contraceptive services. Additionally,
providers of contraceptive services may
enter into separate agreements with more
than one participating issuer. HHS recog-
nizes that there may be additional forms
of documentation that could satisfy these
proposed submission requirements; thus,
HHS seeks comment on the types of doc-
umentation HHS should accept. HHS also
seeks comment on the types of informa-
tion participating issuers must submit to
adequately identify the providers of con-
traceptive services with which the par-
ticipating issuers have entered into such
arrangements.
HHS proposes to add 45 CFR
156.50(d)(2)(i)(E) to require a partici-
pating issuer to submit the total dollar
amount of the provider’s costs of furnish-
ing contraceptive services under the indi-
vidual contraceptive arrangement and for
which a participating issuer would be able
to receive a user fee adjustment (plus an
administrative allowance as specified at
proposed 45 CFR 156.50(d)(3)(iii)). HHS
recognizes that the costs of furnishing
contraceptive services under the individ-
ual contraceptive arrangement would vary
based on the specific contraceptive service
provided and the time it takes to provide
that service. Because of this cost vari-
ance, HHS proposes to allow a provider
of contraceptive services to calculate its
actual costs of furnishing these contra-
ceptive services and to provide that calcu-
lation of actual costs to the participating
issuer offering a plan through the FFE or
an SBE-FP with which the provider has
entered into an arrangement for reim-
bursement of these costs. Consistent with
how the Departments have interpreted
section 2713 of the PHS Act as applied
to group health plans, and health insur-
ance issuers offering group or individual
health insurance coverage,
135
HHS pro-
poses that the actual costs of the provider
of contraceptive services would include
items and services that are integral to the
furnishing of the contraceptive service,
for an amount agreed to by the provider
and eligible issuer, regardless of whether
the provider would typically bill for the
item or service separately. This would
include the administrative costs incurred
by participating providers of contracep-
tive services to deliver the contraceptive
services. HHS seeks comment on the costs
a provider of contraceptive services could
include in its calculation of actual costs
provided to the participating issuer with
which it has entered into an arrangement
for reimbursement of these costs. In deter-
mining how a provider’s costs should be
calculated for reimbursement under the
individual contraceptive arrangement,
HHS considered whether costs should be
calculated using a standard methodology.
However, due to the wide variation in
costs depending on the specific contracep-
tive services provided and how the service
is delivered, HHS determined that permit-
ting a provider of contraceptive services
to calculate its actual costs would allow
the provider to receive a more accurate
cost reimbursement. HHS seeks comment
on whether the reimbursement should
be equal to the provider’s actual costs of
furnishing contraceptive services to eli-
gible individuals or whether HHS should
instead establish a standard methodology
to calculate costs. HHS seeks comment on
benchmarks HHS could use to establish a
reimbursement rate.
Additionally, HHS proposes to revise
45 CFR 156.50(d)(3)(ii) to permit a par-
ticipating issuer that satisfies the require-
ments as proposed in 45 CFR 156.50(d)
(2) to receive a user fee adjustment equal
to the total dollar amount of a provider’s
costs of furnishing contraceptive services
plus the administrative allowance. HHS
proposes to re-designate the adminis-
trative allowance provision at existing
45 CFR 156.50(d)(3)(ii) to new paragraph
(d)(3)(iii), and amend it to establish that
the allowance should be calculated as a
percentage of the sum of the total dollar
amount of the payments for contraceptive
services provided to a third party admin-
istrator as calculated at 45 CFR 156.50(d)
(3)(i) and the provider’s costs of furnish-
ing contraceptive services as calculated
at proposed 45 CFR 156.50(d)(3)(ii).
HHS is of the view that it is appropri-
ate to provide an administrative allow-
ance because participating issuers will
incur additional administrative costs to
providers of contraceptive services for
the actual cost of furnishing contracep-
tive services. As established in the 2015
Payment Notice,
136
the current adminis-
trative allowance is 15 percent for issuers
that have entered into agreements with
third party administrators to reimburse the
cost of contraceptive services with respect
to women getting non-contraceptive cov-
erage through eligible organizations.
137

Consistent with the 2015 Payment Notice
administrative allowance for third party
administrators, HHS proposes an admin-
istrative allowance of at least 10 percent
for issuers that enter into agreements
with providers of contraceptive services
pursuant to the individual contraceptive
arrangement. HHS proposes a 15 percent
administrative allowance for this adjust-
ment, similar to the administrative allow-
ance set in the 2015 Payment Notice for
third party administrators.
Additionally, for clarification and
consistency with current practice, HHS
proposes to clarify at 45 CFR 156.50(d)
(3)(iii) that, unless a new allowance for
administrative costs and margin is speci-
fied in the applicable year’s HHS notice of
benefit and payment parameters or other
rulemaking, HHS will, for a particular
calendar year, maintain the allowance that
135
85 FR 71142, 71174. See also FAQs Part 54, Q1, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-54.pdf and https://www.
cms.gov/files/document/faqs-part-54.pdf.
136
79 FR 13743.
137
79 FR 13743 at 13809.

Bulletin No. 2023–32 455 August 7, 2023
was last specified in rulemaking. HHS
believes this proposal makes clear the
allowance and the mechanism HHS would
use to propose any changes to the allow-
ance. While HHS is proposing to maintain
that the administrative allowance must be
at least 10 percent, as set forth in the 2015
Payment Notice, the current, applicable
administrative allowance is 15 percent.
138

HHS is not proposing making changes to
this percentage in this rulemaking.
HHS also proposes to amend 45 CFR
156.50(d)(5) to provide that a partici-
pating issuer may provide payments for
contraceptive services as soon as they
are delivered, but must provide payments
within 60 days to a third party administra-
tor or a provider of contraceptive services.
Such payments must be made within 60
days of receipt of any adjustment of a user
fee in an amount that is no less than the
portion of the adjustment attributable to
the total dollar amount of the payments
for contraceptive services submitted by
the third party administrator or provider
of contraceptive services. This proposed
amendment to 45 CFR 156.50(d)(5) is
intended to clarify and codify in regula-
tion the current policy as applied to the
existing optional accommodation with
respect to a third party administrator, as
well as to extend this policy to providers
of contraceptive services pursuant to the
individual contraceptive arrangement. The
adjustments to a participating issuer’s user
fee through the FFE or an SBE-FP for a
given year are based on data submitted by
third party administrators to HHS regard-
ing the prior benefit year, and adjustments
to a participating issuer’s current user fee
charges are made on a monthly basis based
on the data received to date regarding the
payments for contraceptive services from
the prior year. For example, a participat-
ing issuer and a provider of contraceptive
services could agree that, prior to and in
anticipation of receiving a user fee adjust-
ment as specified at 45 CFR 156.50(d)(3),
the participating issuer would reimburse
the provider on a monthly or quarterly
basis in an amount equal to the provider’s
costs of furnishing contraceptive services
in accordance with the individual contra-
ceptive arrangement. However, HHS notes
that if any monthly user fee adjustment
that a participating issuer receives does
not cover the full costs of contraceptive
services provided by the provider of con-
traceptive services or the full payment for
contraceptive services made or arranged
for by the third party administrator for
the applicable benefit year, then the pro-
vider may not receive full reimbursement
for all contraceptive services furnished
during the applicable calendar year within
60 days of when the participating issuer
has first received an adjustment to its FFE
or SBE-FP user fee. Thus, HHS proposes
that the signed agreement between a par-
ticipating issuer and a provider of contra-
ceptive services must define the terms for
payment to the provider.
Next, HHS proposes to amend 45 CFR
156.50(d)(6) to establish that, for 10 years
following the calendar year for which the
user fee adjustment is received, a partic-
ipating issuer must retain documentation
demonstrating that it timely paid each pro-
vider of contraceptive services for which
it received any user fee adjustment. These
proposals align with the existing record-
keeping requirements for a participating
issuer under the third party administrator
contraceptive user fee adjustment process.
In addition, HHS proposes to add 45
CFR 156.50(d)(8) to establish record-
keeping requirements with which pro-
viders must comply as a condition of
participating in the individual contracep-
tive arrangement. HHS proposes to require
that, for 10 years following the contracep-
tive service being provided, providers
of contraceptive services must maintain
documentation showing the actual costs
of furnishing contraceptive services in
compliance with the requirements of the
individual contraceptive arrangement and
documentation supporting the total dollar
amount of those costs, and must make this
documentation available upon request to
HHS, the HHS Office of the Inspector
General, the Comptroller General, and
their designees. This timeframe is sim-
ilar to the standard used for third party
administrators under the existing optional
accommodation and the standards used
for other Exchange programs. We solicit
comment on this timeframe and whether
the timeframe should be tied to the issuer
payment instead of the timeframe from
when the contraceptive service is being
provided.
As explained previously, an eligible
individual would be able to access the
individual contraceptive arrangement
without the exempt entity providing any
documentation to an issuer, third party
administrator, or HHS. Nevertheless, a
provider of contraceptive services seeking
to furnish contraceptive services pursuant
to the individual contraceptive arrange-
ment would be required to confirm an
individual’s eligibility for the individual
contraceptive arrangement. As explained
earlier in this preamble, the individual
may make this confirmation by producing
a summary of benefits, such as an SBC
that includes the relevant information or
through other methods, such as by pro-
viding an attestation. The provider of con-
traceptive services would have discretion
on choosing what confirmation method to
accept. HHS expects that providers would
choose to document receiving this rep-
resentation in a variety of ways, such as
by making a notation in a specific eligi-
ble individual’s medical chart. HHS is of
the view that allowing providers of con-
traceptive services to choose how they
document an eligible individual’s rep-
resentation would decrease operational
barriers related to these recordkeeping
requirements and would thereby allow a
greater number of interested providers to
furnish contraceptive services under the
individual contraceptive arrangement.
Recognizing the various types of rep-
resentations a provider of contraceptive
services could receive from or on behalf
of an individual to demonstrate that indi-
vidual’s eligibility for the individual con-
traceptive arrangement, HHS proposes
to add 45 CFR 156.50(d)(9) and (10).
These proposals would preserve, if cer-
tain reliance requirements are met, a pro-
vider’s ability to receive reimbursement
for contraceptive services furnished, as
well as a participating issuer’s ability to
receive a user fee adjustment, if the repre-
sentation as to the individual’s eligibility
for the individual contraceptive arrange-
ment is later determined to be incorrect.
138
79 FR 13743 at 13809.

August 7, 2023 456 Bulletin No. 2023–32
Specifically, proposed 45 CFR 156.50(d)
(9) would establish that if a provider of
contraceptive services relies reasonably
and in good faith on a representation that
the individual is eligible to receive con-
traceptive services pursuant to the indi-
vidual contraceptive arrangement, and
the representation is later determined to
be incorrect, then the provider of contra-
ceptive services would be considered to
have received a representation by an eligi-
ble individual for purposes of receiving a
reimbursement for contraceptive services
furnished by a participating issuer, and
would meet any requirements related to
maintaining documentation of this repre-
sentation. Similarly, 45 CFR 156.50(d)
(10), if finalized, would establish that if a
participating issuer relies reasonably and
in good faith on the provider’s represen-
tation that the provider of contraceptive
services furnished contraceptive services
for an eligible individual, and the repre-
sentation the provider received from or
on behalf of the individual is later deter-
mined to be incorrect, then the participat-
ing issuer would meet any requirements
that involve the provider’s receipt of such
representation.
HHS also proposes to add 45 CFR
156.50(d)(11) to preserve, if certain
requirements are met, the ability of a
participating issuer to receive a user fee
adjustment if the provider’s representa-
tion to the participating issuer that the
provider furnished contraceptive ser-
vices in accordance with the individual
contraceptive arrangement is later deter-
mined to be incorrect. First, proposed
45 CFR 156.50(d)(11) would establish that
if a participating issuer relies reasonably
and in good faith on a provider’s repre-
sentation that the provider furnished con-
traceptive services in accordance with the
individual contraceptive arrangement, and
the representation by the provider of con-
traceptive services is later determined to
be incorrect, then the participating issuer’s
good faith reliance on that incorrect rep-
resentation would meet any requirements
that involve that representation. Second,
the proposal at 45 CFR 156.50(d)(11)
would apply only when a participating
issuer has already reimbursed a provider
of contraceptive services for any amount
of its costs of furnishing contraceptive
services as specified in proposed 45 CFR
156.50(d)(2)(i)(E). HHS is of the view
that it is appropriate to limit this proposal
to instances in which the participating
issuer has already paid the provider of
contraceptive services. If the participat-
ing issuer has not yet paid the provider of
contraceptive services at the time the pro-
vider’s representation is determined to be
incorrect, the participating issuer will not
have incurred a financial loss by no lon-
ger having the ability to receive a user fee
adjustment.
To participate in the individual con-
traceptive arrangement, proposed
45 CFR 147.131(d)(1) would require that
a provider of contraceptive services fur-
nish contraceptive services to the eligi-
ble individual without imposing a fee or
charge of any kind, directly or indirectly,
on the eligible individual or any other
entity for the cost of the items and ser-
vices or any portion thereof. Consistent
with this requirement, HHS proposes to
include in new 45 CFR 156.50(d)(1)(iii),
(d)(10), and (d)(11) that a provider of con-
traceptive services must furnish contra-
ceptive services to the eligible individual
“without imposing a fee or charge of any
kind, directly or indirectly, on the eligible
individual or any other entity for the cost
of the items and services or any portion
thereof.”
Finally, HHS proposes technical cor-
rections to 45 CFR 156.50(d)(1)(ii), (d)
(2)(i)(A) and (B), (d)(2)(ii), (d)(2)(iii)(B),
and (d)(7)(i) to align with these proposed
changes. First, HHS proposes a techni-
cal correction to 45 CFR 156.50(d)(1)
(ii), (d)(2)(i)(A) and (B), (d)(2)(ii), (d)(2)
(iii)(B), and (d)(7)(i) to update cross-ref-
erences to 26 CFR 54.9815-2713A(a)
(4) and 29 CFR 2590.715-2713A(a)
(4), which have been re-designated to
26 CFR 54.9815-2713A(a)(1)(iii) and 29
CFR 2590.715-2713A(a)(1)(iii), respec-
tively. Second, HHS proposes a techni-
cal correction to 45 CFR 156.50(d)(1)
(ii) to clarify that a participating issuer
participating on an SBE-FP is eligible to
receive an adjustment to its Federal user
fee amounts that reflect the value of con-
traceptive services it has agreed to reim-
burse to third party administrators or has
agreed to reimburse to providers for the
providers’ actual costs of furnishing con-
traceptive services consistent with this
individual contraceptive arrangement. In
the HHS Notice of Benefit and Payment
Parameters for 2022 and Pharmacy
Benefit Manager Standards final rule,
139

HHS explained that issuers participating
through an SBE-FP have been able to
qualify for user fee adjustments as pro-
vided for in the HHS Notice of Benefit
and Payment Parameters for 2017,
140
and
amended 45 CFR 156.50 to make explicit
that issuers are eligible to receive SBE-FP
user fee adjustments.
141
Thus, HHS pro-
poses to make a conforming amendment
to 45 CFR 156.50(d)(1)(ii).
HHS notes that it is not proposing to
raise the FFE or SBE-FP user fee rates
finalized in the HHS Notice of Benefit and
Payment Parameters for 2023
142
to offset
the FFE and SBE-FP user fee adjustments,
and HHS estimates reimbursements for
contraceptive services will represent only
a small portion of total FFE user fees.
HHS is of the view that the proposed
amendment to 45 CFR 156.50(d)(2)(i)
(A) and the proposed addition of 45 CFR
156.50(d)(2)(i)(D), which would require
participating issuers, but not providers of
contraceptive services, to submit docu-
mentation demonstrating the agreement,
would mitigate the operational burden on
providers of providing contraceptive ser-
vices through the individual contraceptive
arrangement, without materially increas-
ing the burden for participating issuers that
are already familiar with the process of
submitting information to HHS as part of
the existing conditions for receiving a user
139
86 FR 24140 at 24229 (May 5, 2021).
140
81 FR 12203 at 12293 (March 8, 2016).
141
86 FR 24229.
142
See 87 FR 27208 at 27288. In part 3 of the of the HHS Notice of Benefit and Payment Parameters 2022 final rule, HHS finalized the repeal of the Exchange Direct Enrollment (DE) option
and the removal of 45 CFR 155.221(j). See 86 FR 53412 at 53429 (September 27, 2021). To align with these actions, HHS finalized in the 2023 Payment Notice conforming amendments to
45 CFR 156.50(c) and (d) to remove references to 45 CFR 155.221(j) and the Exchange DE option.

Bulletin No. 2023–32 457 August 7, 2023
fee adjustment through an arrangement
with a third party administrator, pursuant
to the requirements of 45 CFR 156.50(d).
To facilitate the individual contraceptive
arrangement, HHS proposes to make
available to providers of contraceptive
services a list of participating issuers that
have previously participated in the third
party administrator optional contraceptive
user fee adjustment process under current
45 CFR 156.50(d). HHS seeks comment
on this proposal, including whether prior
participating issuers or issuers that intend
to participate in these arrangements in
future years would have concerns with
HHS making this public disclosure. HHS
seeks comment on the proposed amend-
ments to 45 CFR 156.50(d).
As mentioned in section I.B of this
preamble, section 3 of E.O. 14009 directs
HHS and other heads of agencies to review
all agency actions, such as the FFE or
SBE-FP user fees, to determine whether
they are inconsistent with policy priori-
ties described in section 1 of E.O. 14009,
to include protecting and strengthening
the ACA and making high-quality health
care accessible and affordable for all
individuals.
143
Collectively, these pro-
posed rules on the user fee adjustment
would further the goals of E.O. 14009 by
making high-quality health care that is
inclusive of contraceptive services acces-
sible and affordable for more individu-
als. Under the current rules, participants,
beneficiaries, and enrollees enrolled in a
group health plan or coverage sponsored,
arranged, or provided by an object-
ing entity subject to a moral exemption
lack contraceptive coverage and access
to contraceptive services without cost
sharing. The Departments lack the data
to accurately estimate the number of, or
demographics of, participants, beneficia-
ries, or enrollees who have been affected
by previous rules, as objecting employ-
ers, institutions of higher education, and
issuers are not required to notify HHS of
their objection. However, as discussed
earlier in this preamble, low-income
women face a disproportionate burden of
out-of-pocket spending on contraceptive
services.
144
Also, as noted in section I.B, section
3 of E.O. 14076 requires the Secretary of
HHS to submit a report to the President
that is focused on, among other priorities,
“protect[ing] and expand[ing] access to
the full range of reproductive healthcare
services, including actions to enhance
family planning services such as access
to emergency contraception,” and “pro-
moting awareness of and access to the
full range of contraceptive services.”
Collectively, these proposed rules are con-
sistent with the objectives of E.O. 14076
by protecting and expanding access to
the full range of reproductive health care
services and enhancing family planning
services, and promoting access to the full
range of contraceptive services.
IV. Severability
It is the Departments’ intent that if any
provision of these proposed rules, if final-
ized, is held to be invalid or unenforceable
by its terms, or as applied to any person or
circumstance, the rules shall be construed
so as to continue to give maximum effect
to the rules as permitted by law, unless the
holding shall be one of utter invalidity or
unenforceability. In the event a provision
is found to be utterly invalid or unen-
forceable, the provision shall be severable
from these proposed rules as finalized, as
well as the final rules they amend, and
shall not affect the remainder thereof or
the application of the provision to per-
sons not similarly situated or to dissimilar
circumstances.
V. Response to Comments
Because of the large number of public
comments that the Departments normally
receive on Federal Register documents,
the Departments are not able to acknowl-
edge or respond to them individually. The
Departments will consider all comments
received by the date and time specified
in the “DATES” section of this preamble,
and, when the Departments proceed with
a subsequent document, the Departments
will respond to the comments in the pre-
amble to that document.
VI. Economic Impact and Paperwork
Burden
A. Summary
These proposed rules would expand
access to contraceptive services without
cost sharing for women through the pro-
vision of a new individual contraceptive
arrangement, whereby an eligible indi-
vidual would be able to obtain contra-
ceptive services from willing providers
of contraceptive services at no cost to the
individual, and the providers of contracep-
tive services would be reimbursed for the
costs of furnishing contraceptive services
by a participating issuer on the FFE or an
SBE-FP through an adjustment to the FFE
or SBE-FP user fee for the participating
issuer. These proposed rules would main-
tain the existing exemptions and optional
accommodations for eligible entities and
individuals claiming a religious objection
to providing contraceptive coverage.
These proposed rules would also
expand access to contraceptive services
without cost sharing by eliminating the
exemption for entities and individuals that
object to contraceptive coverage based on
non-religious moral beliefs.
The Departments have examined the
effects of these proposed rules as required
by Executive Order 13563 (76 FR 3821,
January 21, 2011, Improving Regulation
and Regulatory Review); Executive Order
12866 (58 FR 51735, October 4, 1993,
Regulatory Planning and Review); the
Regulatory Flexibility Act (September 19,
1980, Pub. L. 96–354); section 1102(b)
of the Social Security Act (42 U.S.C.
1102(b)); section 202 of the Unfunded
Mandates Reform Act of 1995 (March 22,
1995, Pub. L. 104–4); Executive Order
13132 (64 FR 43255, August 10, 1999,
Federalism); and the Congressional
Review Act (5 U.S.C. 804(2)).
143
E.O. 14009 also revoked Executive Order 13765 of January 20, 2017 (Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal). The
Departments adopted the moral exemption and accommodation in part to further this now revoked Executive Order by relieving a regulatory burden imposed on entities with moral convic-
tions opposed to providing certain contraceptive coverage.
144
See FN 54.

August 7, 2023 458 Bulletin No. 2023–32
B. Executive Orders 12866 and 13563
Executive Order 12866 directs agencies
to assess all costs and benefits of available
regulatory alternatives and, if regulation is
necessary, to select regulatory approaches
that maximize net benefits (including
potential economic, environmental, pub-
lic health and safety effects, distributive
impacts, and equity). Executive Order
13563 is supplemental to and reaffirms the
principles, structures, and definitions gov-
erning regulatory review as established in
Executive Order 12866.
Section 3(f) of Executive Order 12866
defines a “significant regulatory action”
as an action that is likely to result in a
rule: (1) having an annual effect on the
economy of $100 million or more in any
1 year, or adversely and materially affect-
ing a sector of the economy, productiv-
ity, competition, jobs, the environment,
public health or safety, or State, local
or Tribal governments or communities
(also referred to as “economically sig-
nificant”); (2) creating a serious incon-
sistency or otherwise interfering with
an action taken or planned by another
agency; (3) materially altering the bud-
getary impacts of entitlement grants, user
fees, or loan programs or the rights and
obligations of recipients thereof; or (4)
raising novel legal or policy issues aris-
ing out of legal mandates, the President’s
priorities, or the principles set forth in the
Executive Order.
A regulatory impact analysis (RIA)
must be prepared for major rules with
economically significant effects (for
example, $100 million or more in any
one year), and a “significant” regulatory
action is subject to review by the Office
of Management and Budget (OMB). The
Departments anticipate that this regu-
latory action is not likely to have eco-
nomic impacts of $100 million or more
in at least 1 year and is therefore not
expected to be economically significant
under Executive Order 12866. OMB has
determined, however, that the actions are
significant within the meaning of section
3(f)(4) of the Executive Order. Therefore,
the Departments have provided an assess-
ment of the potential costs, benefits, and
transfers associated with these proposed
rules. In accordance with the provisions
of Executive Order 12866, this regula-
tion was reviewed by OMB.
1. Need for Regulatory Action
Previous rules, regulations, and court
decisions have left many women with-
out contraceptive coverage and access
to contraceptive services without cost
sharing. These proposed rules, if final-
ized, seek to resolve the long-running
litigation with respect to religious
objections to providing contraceptive
coverage, by honoring the objecting
entities’ religious objections, while
also ensuring that women enrolled in a
group health plan established or main-
tained, or in health insurance coverage
offered or arranged, by an objecting
entity described in 45 CFR 147.132(a)
have the opportunity to obtain contra-
ceptive services at no cost. These pro-
posed rules would also eliminate the
exemption for entities and individuals
that object to contraceptive coverage
based on non-religious moral beliefs,
which prevents access to contraceptive
services without cost sharing.
2. Summary of Impacts
These proposed rules would expand
access to contraceptive services without
cost sharing and reduce out-of-pocket
spending on contraceptive services for
individuals eligible for the individual con-
traceptive arrangement. Issuers that reim-
burse providers of contraceptive services
for the costs of furnishing contraceptive
services for individuals eligible for the
individual contraceptive arrangement and
in turn seek an adjustment to the FFE or
SBE-FP user fee would incur adminis-
trative costs, which would be offset by
Federal payments in the form of user fee
adjustments. Providers of contraceptive
services would also incur administra-
tive costs associated with furnishing the
contraceptive services and entering into
a signed agreement with a participating
issuer on the FFE or an SBE-FP to receive
reimbursement for the contraceptive ser-
vices furnished, and individuals might
incur costs related to finding providers of
contraceptive services willing to partici-
pate in the program.
These proposed rules would also
expand access to contraceptive ser-
vices without cost sharing and reduce
out-of-pocket spending on contracep-
tive services for individuals by elim-
inating the exemption for entities and
individuals that object to contraceptive
coverage based on non-religious moral
beliefs. However, as noted later in the
Transfers discussion of this section
the Departments do not have infor-
mation on the number of entities and
individuals that have claimed a moral
exemption to providing contraceptive
coverage, and are therefore uncertain
of the amount of the potential trans-
fer from plans and issuers to partici-
pants, beneficiaries, and enrollees due
to reduced out-of-pocket spending on
contraceptive services associated with
the proposed elimination of the exemp-
tion for entities and individuals that
object to contraceptive coverage based
on non-religious moral beliefs.
In accordance with Executive Order
12866, the Departments are of the view
that the benefits of this regulatory action
justify the costs. The expected benefits,
costs, and transfers associated with these
proposed rules are summarized in Table
1 and discussed in detail later in this
section.

Bulletin No. 2023–32 459 August 7, 2023
TABLE 1-- Accounting Table
Benefits:
Qualitative:
• Expansion of access to contraceptive services without cost sharing for eligible individuals through the creation of a new
individual contraceptive arrangement.
• Expansion of access to contraceptive services without cost sharing for participants, beneficiaries, and enrollees through the
elimination of the exemption for entities and individuals that object to contraceptive coverage based on non-religious moral
beliefs.
• Potential increase in health equity, given the expected reduction in out-of-pocket spending on contraceptive services by
individuals.
• Potential reduction in unintended pregnancies and improved health outcomes for individuals.
Costs: EstimateYear DollarDiscount RatePeriod Covered
Annualized Monetized ($/year)$30.11 million20227 percent2023 – 2027
$30.11 million20223 percent2023 – 2027
Quantitative:
• Administrative costs of approximately $4.7 million annually to participating providers of contraceptive services related to
signing agreements with issuers. These costs would likely be included in the service charges of providers of contraceptive
services and ultimately incurred by the Federal Government.
• Administrative costs of approximately $14.5 million annually to participating providers of contraceptive services associated
with verifying eligibility for the proposed individual contraceptive arrangement, submitting amounts to participating issuers
on the FFE or an SBE-FP to receive reimbursement for the contraceptive services furnished, and maintaining records. These
costs would likely be included in the service charges of providers of contraceptive services and ultimately incurred by the
Federal Government.
• Administrative costs and margin of approximately $10.4 million annually to participating issuers associated with signing
agreements with participating providers of contraceptive services, processing amounts requested from participating providers
of contraceptive services, submitting required information to HHS, and maintaining records. These administrative costs would
be offset by Federal payments in the form of adjustments to FFE and SBE-FP user fees.
• Costs of approximately $590,077 annually to eligible individuals that participate in the individual contraceptive arrangement
to confirm eligibility to their provider of contraceptive services.
Qualitative:
• Potential costs to eligible individuals associated with finding providers of contraceptive services that are willing to participate
in the individual contraceptive arrangement.
• Potential reduction in health care costs due to a reduction in unintended pregnancies and improved health outcomes.
• Potential cost savings to states associated with reduced spending on State-funded programs that provide contraceptive
services.
• Potential cost savings to states associated with a reduction in unintended pregnancies that would otherwise impose costs to
states.
Transfers:EstimateYear DollarDiscount RatePeriod Covered
Annualized Monetized ($/year)$49.9 million20227 percent2023 – 2027
$49.9 million 20223 percent2023 – 2027
Quantitative:
• Transfer of $49.9 million annually from the Federal Government to eligible individuals who would spend less out-of-pocket
on contraceptive services, in the form of user fee adjustments to participating issuers who would reimburse providers of
contraceptive services for the costs of furnishing participants, beneficiaries, and enrollees with contraceptive services as a
result of the individual contraceptive arrangement.
Qualitative:
• Potential transfer from plans and issuers to participants, beneficiaries, and enrollees who would gain access to contraceptive services
without cost sharing as a result of the elimination of the exemption for entities and individuals that object to contraceptive coverage
based on non-religious moral beliefs and who spend less out-of-pocket on contraceptive services as a result.

August 7, 2023 460 Bulletin No. 2023–32
Number of Affected Entities
The Departments lack the data to accu-
rately estimate the number of eligible
individuals who would participate in the
individual contraceptive arrangement. In
the October 2017 Religious Exemption
interim final rules and the November
2018 Religious Exemption final rules, the
Departments noted that the 122 nonprofit
entities that had filed litigation challeng-
ing the accommodation process and the
87 closely held for-profit entities that had
filed suit challenging the contraceptive
coverage requirement in general could
have been affected by the November
2018 Religious Exemption final rules,
but were uncertain how many of these
organizations would use the expanded
exemption provided under the November
2018 Religious Exemption final rules and
how many of these entities would use the
optional accommodation process. The
Departments assumed that slightly more
than half of these entities, or 109 organiza-
tions, would use the expanded exemption.
The Departments previously esti-
mated that between 70,500 and 126,400
individuals would be affected by the
November 2018 Religious Exemption
final rules. Since the implementation of
the November 2018 Religious Exemption
final rules, additional entities may have
claimed a religious exemption to contra-
ceptive coverage without participating
in the optional accommodation process.
For this reason, the Departments view the
estimate of 126,400 individuals to be the
lower bound estimate of the number of eli-
gible individuals and 109 health plans to
be the lower bound estimate of the num-
ber of exempt entities. The Departments
seek comment on the number of entities
that have claimed a religious exemption to
providing contraceptive coverage without
using the optional accommodation process
and the number of individuals who might
receive contraceptive coverage through
the provision of the individual contracep-
tive arrangement.
Eligible individuals would need to
find providers of contraceptive services
that would be willing to participate in the
individual contraceptive arrangement. The
Departments lack sufficient information to
accurately estimate the number of provid-
ers of contraceptive services that would
participate. The Departments assume that
at least 10 pharmacy chains (including
mail order pharmacies) would participate.
The Departments also assume that for each
exempt entity, the participants, benefi-
ciaries, and enrollees in its health plan or
coverage are located in the same geograph-
ical area, and there would be, on average,
20 providers of contraceptive services
(10 clinicians or facilities, and at least 10
retail pharmacies) in the area that would
participate in the individual contraceptive
arrangement.
145
Based on these assump-
tions, for the participants, beneficiaries, and
enrollees in the plans for the 109 exempt
entities, there would be approximately
2,180 participating providers of contracep-
tive services (1,090 retail pharmacies and
1,090 clinicians and facilities) that would
participate in the individual contraceptive
arrangement. If these providers of contra-
ceptive services already participate in the
health plan’s provider network, an eligible
individual would be able to receive con-
traceptive services from one of their reg-
ular providers of contraceptive services or
another in-network provider of contracep-
tive services. However, it is possible that
an eligible individual would need to find
a provider of contraceptive services other
than the provider or providers from whom
the individual typically receives care in
order to access contraceptive services at no
cost. The Departments seek comment on
the number of providers of contraceptive
services that would participate in the indi-
vidual contraceptive arrangement.
These proposed rules would also
eliminate the exemption for entities and
individuals that object to contraceptive
coverage based on non-religious moral
beliefs. In the November 2018 Moral
Exemption final rules, without data
available to estimate the actual number
of entities that would make use of the
exemption for entities with sincere non-re-
ligious moral objections, the Departments
assumed that the exemption would be
used by nine nonprofit entities and nine
for-profit entities and that approximately
15 women may incur contraceptive costs
due to for-profit entities using the moral
exemption. The Departments do not
have any data on how many individuals
object to contraceptive coverage based on
non-religious moral beliefs.
Benefits
These proposed rules would increase
access to contraceptive services without
cost sharing through the individual contra-
ceptive arrangement for eligible individu-
als and the elimination of the exemption
for entities and individuals that object to
contraceptive coverage based on non-reli-
gious moral beliefs.
As stated in section I.B of this pream-
ble, studies report that 99 percent of sexu-
ally-active women have used at least one
method of contraception at some point
during their lifetime, regardless of reli-
gious affiliation. Prior to the implementa-
tion of the ACA, out-of-pocket expenses
for contraceptive services represented a
significant portion, estimated to range from
30 percent to 44 percent, of a woman’s
total out-of-pocket health care spending.
146

It has been estimated that the implementa-
tion of the ACA contraceptive coverage
requirement led to out-of-pocket savings
to consumers on contraceptive pills of
approximately $1.4 billion between 2012
and 2013.
147
Additionally, several studies
have found that the ACA contraceptive
coverage requirement increased access
to and utilization of contraceptives.
148

145
Although pharmacies are generally licensed as facilities, for purposes of this regulatory impact analysis, the Departments treat them separately.
146
Nora B. & Polsky, D. (2015). “Women Saw Large Decrease in Out-Of-Pocket Spending for Contraceptives After ACA Mandate Removed Cost Sharing.” Health Affairs; 34(7): 1204-1211.
147
Becker, N. & Polsky, D. (2015). “Women Saw Large Decrease In Out-Of-Pocket Spending For Contraceptives After ACA Mandate Removed Cost Sharing.” Health Affairs, 34(7): 1204-
1211. See also Sobel, L., Salganicoff, A. et al. (2018). “New Regulations Broadening Employer Exemptions to Contraceptive Coverage: Impact on Women.” KFF Issue Brief. Available at
https://www.kff.org/health-reform/issue-brief/new-regulations-broadening-employer-exemptions-to-contraceptive-coverage-impact-on-women/.
148
Becker, N. (2018). “The Impact of Insurance Coverage on Utilization of Prescription Contraceptives: Evidence from the Affordable Care Act.” Journal of Policy Analysis and Management,
37(3): 571-601; Nora, B., Keating, N. et al. (2021). “ACA Mandate Led to Substantial Increase in Contraceptive Use Among Women Enrolled in High-Deductible Health Plans.” Health
Affairs, 40(4): 579-586; Snyder, A., Weisman, C., et al. (2018). “The Impact of the Affordable Care Act on Contraceptive Use and Costs among Privately Insured Women.” Women’s Health
Issues, 28(3): 219-223; Weisman, C., Chuang, C., et al. (2019). “ACA’s Contraceptive Coverage Requirement: Measuring Use and Out-of-Pocket Spending.” Health Affairs, 38(9): 1537-1541.

Bulletin No. 2023–32 461 August 7, 2023
The coverage of contraceptive services
has been shown to improve the consis-
tent use of the most effective short-act-
ing methods of contraception, and the
removal of cost sharing also increases the
use of more effective LARC methods.
149

One study found that following the imple-
mentation of the ACA contraceptive cov-
erage requirement, the discontinuation of
use of oral contraceptive pills fell and that
nonadherence to brand-name oral con-
traceptive pills also declined.
150
Another
study reported that having no copayment
on contraceptive services assisted 80 per-
cent of women in affording and using
birth control, helped 60 percent choose
a better method, and helped 71 percent
use contraceptive services more consis-
tently.
151
These proposed rules would have
similar effects, as they would increase
access to contraceptive services for eligi-
ble individuals who currently do not have
access to contraceptive services without
cost sharing.
More than half of pregnancies in 2008
(51 percent or approximately 3.4 mil-
lion) were estimated to be unintended;
by 2011 this number had declined to 45
percent,
152
and by 2020 it had declined
further to an estimated 39.5 percent,
153

which may be due to a change in the
frequency and type of contraceptive use
over time. Studies indicate that some
groups tend to have higher rates of unin-
tended pregnancies; for example, one
study found that 75 percent of pregnan-
cies among teens aged 15 to 19 years of
age were unplanned,
154
and another study
reported that nearly 70 percent of preg-
nancies among unmarried women aged
20 to 29 years of age were unplanned.
155

In 2008, unplanned pregnancies of those
covered by Medicaid or the Children’s
Health Insurance Program (CHIP) were
estimated to have cost Federal and State
taxpayers between $9.6 billion and $12.6
billion, and without publicly funded fam-
ily planning the costs would have been
an estimated $25 billion.
156
In addition
to the costs associated with unintended
pregnancies, unintended pregnancies can
pose increased health risks to both mother
and baby. Women with unplanned preg-
nancies are less likely to receive prenatal
care and have higher rates of postpartum
depression and mental health problems
later in life.
157
Unplanned pregnancies
have also been associated with increases
in low birthweight and preterm births,
and children born due to an unplanned
pregnancy are more likely to fare worse
in school achievement, have social and
emotional disorders, and have less suc-
cess in the labor market later in life.
158

One study found evidence of a decrease
in births following the elimination of
cost sharing for contraceptives under
the ACA; further, it showed a 22.2 per-
cent reduction in birth rates for women
in the lowest income group between
2014 and 2018 (from 8 to 6.2 per 100
women).
159
These proposed rules would
reduce unintended pregnancies and lead
to better health outcomes for eligible
individuals by increasing access to con-
traceptive services.
Finally, these proposed rules would
increase health equity, given the dis-
proportionate burden of out-of-pocket
spending on contraceptive services cur-
rently faced by low-income individuals
(as those individuals with lower incomes
must spend a greater percentage of their
incomes on contraceptive services). As
discussed earlier in this section, prior to
the implementation of the ACA, out-of-
pocket expenses for contraceptives rep-
resented a significant portion, estimated
to range from 30 percent to 44 percent, of
a woman’s total out-of-pocket health care
spending.
160
A recent study found that
people of color (and low-income people)
are more likely to live in areas in which
the proportion of reproductive-aged
residents have a lack of, or difficulty
obtaining, reproductive and contracep-
tive health care – referred to as “contra-
ception deserts.”
161
The study found that
the proportion of the population living
within these types of areas ranges from
approximately 17 percent in California to
approximately 50 percent in Texas. One
study has shown that in 2011, women
with incomes below 100 percent of the
Federal poverty level had unplanned
pregnancies at a rate seven times higher
than those at or above 200 percent of
the Federal poverty level. Unplanned
pregnancies were also more common in
women who have low incomes or are
racial or ethnic minorities.
162

149
Behn, M., Pace, LE., et al. (2019). “The Trump Administration’s Final Regulations Limit Insurance Coverage of Contraception.” Women’s Health Issues, 29(2): 103-106.
150
Pace, L., Dusetzina, S., et al. (2016). “Early Impact of the Affordable Care Act on Oral Contraceptive Cost Sharing, Discontinuation, and Nonadherence.” Health Affairs, 35(9): 1616-1624.
151
Bearak, J.& Johns, R. (2017). “Did Contraceptive Use Patterns Change after the Affordable Care Act? A Descriptive Analysis.” Women’s Health Issues, 27(3): 316-321.
152
Finer, L. & Zolna, M. (2016) “Declines in Unintended Pregnancy in the United States, 2008-2011.” N Engl J Med, 374(9):843-52.
153
Permanency Risk Assessment Monitoring System: Prevalence of Selected Maternal and Child Health Indicators for all Pregnancy Risk Assessment Monitoring System (PRAMS) Sites,
2016-2020. Available at: https://www.cdc.gov/prams/prams-data/mch-indicators/states/pdf/2020/All-Sites-PRAMS-MCH-Indicators-508.pdf.
154
See FN 173.
155
Monea, E., & Thomas, A. (2011). “Unintended Pregnancy and Taxpayer Spending.” Perspectives on Sexual & Reproductive Health, 43(2), 88–93; and Sonfield, A. and Kost, K. (2013).
“Public Costs from Unintended Pregnancies and the Role of Public Insurance Programs in Paying for Pregnancy and Infant Care: Estimates for 2008.” Guttmacher Institute. Available at:
http://www.guttmacher.org/pubs/public-costs-of-UP.pdf. Kaye, K., Gootman, J.A., Ng, A.S., & Finley, C. (2014). “The Benefits of Birth Control in America: Getting the Facts Straight.” The
National Campaign to Prevent Teen and Unplanned Pregnancy. Available at: https://powertodecide.org/sites/default/files/resources/primary-download/benefits-of-birth-control-in-america.
pdf.
156
Sonfield, A. & Kost, K. (2013). “Public Costs from Unintended Pregnancies and the Role of Public Insurance Programs in Paying for Pregnancy and Infant Care: Estimates for 2008.”
Guttmacher Institute. Available at: http://www.guttmacher.org/pubs/public-costs-of-UP.pdf.
157
“Preventing Unplanned Pregnancy.” National Conference of State Legislatures (2021). Available at: https://www.ncsl.org/research/health/preventing-unplanned-pregnancy.aspx.
158
Id.
159
Dalton, V., Moniz, M., et al. (2020). “Trends in Birth Rates After Elimination of Cost Sharing for Contraception by the Patient Protection and Affordable Care Act.” JAMA Network Open,
3(11): e2024398.
160
Becker, N., & Polsky, D. (2015). “Women Saw Large Decrease in Out-Of-Pocket Spending for Contraceptives After ACA Mandate Removed Cost Sharing.” Health Affairs; 34(7):
1204-1211.
161
Kreitzer, R.J., Watts Smith, C., et al. (2021). “Affordable but Inaccessible? Contraception Deserts in the US States.” Journal of Health Politics, Policy and Law 46(2): 277-304.
162
Finer, L. & Zolna, M. (2016) “Declines in Unintended Pregnancy in the United States, 2008-2011.” N Engl J Med, 374(9):843-52 and Behn, M., Pace, LE., et al. (2019). “The Trump
Administration’s Final Regulations Limit Insurance Coverage of Contraception.” Women’s Health Issues, 29(2): 103-106.

August 7, 2023 462 Bulletin No. 2023–32
The enactment of the ACA has been
shown to provide gains in coverage and
access to women’s reproductive health
services and accompanying reduced costs
for women who would otherwise be with-
out health coverage or face large out-of-
pocket costs. As noted in a recent study,
even in some cases where “medical insur-
ance is available among women in the
same socioeconomic strata, unexplained
disparities persist and suggest that racism
and other social and clinician-level issues
are factors” that can still result in unequal
access to health care and distrust of phy-
sicians.
163
Although it is believed that
these proposed rules would have marginal
effects on the overall level of health ineq-
uity, the presence of barriers to contracep-
tive coverage would be more burdensome
on insured women with lower incomes
and reducing those barriers could have
the potential to reduce socioeconomic,
racial, and ethnic disparities in health
outcomes.
164
Costs
Participating providers of contracep-
tive services and issuers would need to
enter into signed agreements for reim-
bursement of costs associated with the
provision of contraceptive services to
eligible individuals and would therefore
incur related administrative costs. In
order to estimate these costs, providers of
contraceptive services have been divided
into two broad categories – clinicians
or facilities, and pharmacies. For each
signed agreement between clinicians or
facilities and issuers, the Departments
estimate that, on average, senior manag-
ers would spend 4 hours (at $110.82 per
hour
165
), lawyers would spend 40 hours
(at $142.34 per hour), legal secretaries
would spend 40 hours (at $50.52 per
hour), a clinician would spend 1 hour
(at $284.82 per hour), and a chief exec-
utive officer would spend 15 minutes (at
$204.82 per hour). The total burden for
each signed agreement would be 85.25
hours, with an associated cost of approx-
imately $8,494. There would be an esti-
mated 1,090 signed agreements between
1,090 participating clinicians or facilities
and issuers. The total estimated cost for
all signed agreements between clini-
cians or facilities and issuers would be
approximately $9.3 million. The number
of signed agreements and related costs
could be lower if multiple facilities are
owned by the same entity. For each signed
agreement between pharmacy chains and
issuers, the Departments estimate that
senior managers would spend 4 hours (at
$110.82 per hour), lawyers would spend
40 hours (at $142.34 per hour), legal sec-
retaries would spend 40 hours (at $50.52
per hour), and chief executive officers
would spend 30 minutes (at $204.82 per
hour). The total burden for each signed
agreement would be 84.5 hours, with an
associated cost of approximately $8,260.
There would be an estimated 10 signed
agreements between 10 participating
pharmacy chains and issuers. The total
estimated cost for all signed agreements
between pharmacy chains and issuers
would be approximately $82,601.
The total cost of 1,100 signed agree-
ments between all providers of contra-
ceptive services and issuers would be
approximately $9.3 million in the first
year. The Departments assume that half
of these costs would be incurred by par-
ticipating providers of contraceptive ser-
vices and half by issuers (approximately
$4.7 million each). Providers of contra-
ceptive services are likely to incorporate
these costs into their fees for providing the
contraceptive services, while costs to issu-
ers would be offset by Federal payments
in the form of user fee adjustments. The
annual costs of renegotiating and signing
agreements in future years might be lower,
unless providers of contraceptive services
enter into new agreements with different
issuers. The Departments seek comment
on the number of signed agreements that
would be executed annually and the mag-
nitude of the potential administrative costs
to providers of contraceptive services and
issuers.
163
Sutton, M.Y., Anachebe, F., et al. (2021) Racial and Ethnic Disparities in Reproductive Health Services and Outcomes, 2020. Obstetrics & Gynecology: 137(2): 225-233.
164
Behn, M., Pace, L.E., et al. (2019). The Trump Administration’s Final Regulations Limit Insurance Coverage of Contraception. Women’s Health Issues, 29(2): 103-106.
165
The Departments generally used data from the Bureau of Labor Statistics to derive average labor costs (including a 100 percent increase for fringe benefits and other indirect costs). May
2021 Bureau of Labor Statistics, Occupational Employment Statistics, National Occupational Employment and Wage Estimates, available from https://www.bls.gov/oes/current/oes_nat.htm.
TABLE 2-- Annual Costs Related to Signed Agreements
Entities
Estimated Number of Signed
Agreements
Estimated Cost Per Signed
Agreement
Total Estimated Cost
Clinicians/ Facilities and
Issuers
1,090$8,494$9,258,138
Pharmacies and Issuers10$8,260$82,601
Total1,100$9,340,739
Participating providers of contracep-
tive services would also incur administra-
tive costs related to eligibility verification,
submission of claims, and document
retention. These costs are estimated to be
approximately $14.5 million annually and
are discussed in detail later in the HHS
Paperwork Reduction Act section, section
VI.D of this preamble.
Participating issuers would also incur
administrative costs related to processing
of amounts received from participating
providers of contraceptive services, and
submission of required information to
HHS. As mentioned previously in this
preamble, HHS proposes to reimburse
participating issuers an administrative
allowance of 15 percent for administrative

Bulletin No. 2023–32 463 August 7, 2023
costs and margin. Therefore, the estimated
administrative costs and margin to issuers
would be approximately $10.4 million,
166

which would be offset by Federal pay-
ments in the form of user fee adjustments.
This total includes the estimated approxi-
mately $11,866 in costs related to the sub-
mission of required information to HHS
as detailed later in the HHS Paperwork
Reduction Act section, section VI.D of
this preamble, and approximately $4.7
million in costs related to signing agree-
ments discussed earlier in this section.
Individuals would incur costs asso-
ciated with finding providers of contra-
ceptive services that would be willing to
participate in the individual contraceptive
arrangement. Some individuals might
have to switch providers of contracep-
tive services if their usual providers of
contraceptive services are not willing to
participate in the individual contracep-
tive arrangement. The Departments seek
comment on ways to mitigate search costs
for eligible individuals and how access to
the individual contraceptive arrangement
can best be promoted. One option could
be to make a list of participating provid-
ers publicly available on a public website.
The Departments also seek comment on
whether making provider information
publicly available might deter provider
participation in the individual contracep-
tive arrangement. Additionally, as dis-
cussed previously, people of color and
low-income people are more likely to live
in areas considered contraception deserts.
If eligible individuals live in contracep-
tion deserts, they might have to spend
more time and money traveling longer
distances in order to meet with a partici-
pating provider of contraceptive services.
The Departments seek comment on the
number of eligible individuals without
access to contraceptive services without
cost sharing under their existing plan or
coverage or living in contraception des-
erts and the potential search costs of these
proposed rules on such individuals.
There would also be a reduction in
health care costs for individuals who gain
access to contraceptive services and for
group health plans and coverage spon-
sored, arranged, or provided by exempt
entities if these proposed rules lead to a
reduction in unintended pregnancies or
improved health outcomes.
Individuals who do not currently have
contraceptive coverage through group
health plans and coverage sponsored by
exempt entities may turn to State-funded
programs to obtain contraceptive services.
States may also currently incur costs
related to unintended pregnancies result-
ing from a lack of access to contracep-
tive services for these individuals. These
proposed rules may therefore lead to cost
savings for states, to the extent that states
are currently incurring costs to provide
or fund contraceptive services or birth
and maternity care for individuals who
would gain access to contraceptive ser-
vices as a result of these proposed rules.
The Departments seek comment on the
potential impacts of these proposed rules
on states and State finances.
Transfers
These proposed rules would result in
a transfer from the Federal Government,
via the provision of user fee adjustments
to issuers that would then reimburse pro-
viders of contraceptive services for the
costs of furnishing contraceptive ser-
vices, to individuals who would now
have access to contraceptive services
without cost sharing and no longer incur
out-of-pocket spending on contraceptive
services. As discussed previously in the
Number of Affected Entities discussion
of this section, it is estimated that at least
126,400 individuals would be eligible to
participate in the individual contracep-
tive arrangement. Based on the limited
information available from the 2019 user
fee adjustment data,
167
the Departments
estimate that the average annual cost of
contraceptive services for one individual
is approximately $395. Therefore, the
Departments estimate that the provision of
the individual contraceptive arrangement
could lead to a transfer from the Federal
Government to individuals (via issuers
to providers of contraceptive services) of
approximately $49.9 million annually.
168

This estimate is uncertain due to the lim-
ited information available in the 2019 user
fee adjustment data, and the Departments
seek comment on the estimated average
annual cost of contraceptive services per
individual. Assuming these proposed reg-
ulations are finalized and become appli-
cable during 2023, transfers might be
lower in 2023, since 2023 transfers would
include services furnished during only
part of the year.
In addition, a reduction in unintended
pregnancies or improved health outcomes
could lead to a reduction in premiums.
The Departments also expect that the
proposed elimination of the exemption
for entities and individuals that object to
contraceptive coverage based on non-reli-
gious moral beliefs could lead to a trans-
fer from plans and issuers to participants,
beneficiaries, and enrollees due to reduced
out-of-pocket spending on contraceptive
services. However, the Departments do
not have information on the number of
entities and individuals that have claimed
a moral exemption to providing contra-
ceptive coverage and seek comment on
the number of entities and individuals
that would be affected by this proposed
change.
Uncertainty
Although the Departments expect
that these proposed rules would expand
access to contraceptive services without
cost sharing, as noted earlier in this sec-
tion, there are several areas of uncertainty
regarding the potential impacts of these
proposed rules.
The Departments are uncertain how
many providers of contraceptive ser-
vices, issuers, and eligible individuals
would participate in the individual con-
traceptive arrangement. The Departments
seek comment on potential barriers that
might prevent providers, issuers, and
eligible individuals from participating
in the individual contraceptive arrange-
ment. The Departments anticipate that the
166
Estimated total amount = cost of contraceptive services ($49.9 million) + administrative costs to providers of contraceptive services (= $14.5 million + $4.7 million) = $69 million. 15
percent of $69 million = $10.4 million approximately.
167
HHS used 2019 data for this estimate to better reflect claims experience outside of the COVID-19 public health emergency.
168
126,400 × $395 = $49.9 million approximately.

August 7, 2023 464 Bulletin No. 2023–32
administrative allowance — which would
be expected to cover participating issuers’
administrative costs and provide a margin
to ensure that participating issuers receive
appropriate compensation for providing
reimbursements — would incentivize
issuers to participate in the individual con-
traceptive arrangement.
The Departments expect that adminis-
trative costs incurred by participating pro-
viders of contraceptive services to deliver
the services would be included in the
amounts they submit to issuers for reim-
bursement (as noted earlier in this section),
and therefore would not be a deterrent to
participation in the individual contracep-
tive arrangement. The Departments are
unable to estimate these costs precisely
because these costs are expected to vary.
These costs might be lower for larger pro-
viders, due to larger economies of scale,
and for providers that might currently
have contracts with participating issuers.
The Departments are uncertain as to how
the number of participating providers
might vary (for example, across rural and
urban areas) and how this variation might
affect access to services under the individ-
ual contraceptive arrangement.
Due to the lack of data, the Departments
are unable to develop a precise estimate
of the number of eligible individuals
who might participate in the individual
contraceptive arrangement because the
Departments do not know how many
entities have claimed an exemption under
the November 2018 Religious Exemption
final rules. Further, take-up of the individ-
ual contraceptive arrangement by eligible
individuals would be affected by, among
other things, awareness of the individual
contraceptive arrangement, the number of
providers of contraceptive services that
participate in the individual contraceptive
arrangement, and the amount of time and
effort it would take an individual to find a
participating provider.
The Departments are unable to develop
a more accurate estimate of the transfers
and cost to the Federal Government (dis-
cussed earlier in this section) as there is
uncertainty regarding the total amounts
for contraceptive services that would be
submitted by providers of contraceptive
services to issuers for reimbursement, and
therefore the total amount of the transfer
from the Federal Government to eligible
individuals, and the total amounts of the
administrative costs incurred by partici-
pating providers and issuers. Finally, this
overall lack of data leads to uncertainty
regarding the magnitudes of the total cost
savings to eligible individuals and any
resulting potential cost savings to states
(associated with reduced spending on
State-funded programs that provide con-
traceptive services or a potential reduction
in the number of unintended pregnancies
that would otherwise impose costs to
states).
The Departments seek comment on all
of these areas of uncertainty regarding the
impacts of these proposed rules.
C. Regulatory Alternatives
In developing these proposed rules, the
Departments considered various alterna-
tive approaches.
The Departments considered maintain-
ing the exemption (along with the existing
accommodations and the proposed indi-
vidual contraceptive arrangement) with
respect to group health plans, health insur-
ance issuers, and institutions of higher
education that have a non-religious moral
objection to contraceptive coverage. The
Departments, however, are of the view
that neither RFRA nor any other Federal
statute compels such an exemption, and
propose eliminating this exemption for
several reasons, especially given the
strong public interest in assuring contra-
ceptive coverage to women enrolled in
group health plans, or group or individ-
ual (including student) health insurance
coverage.
With respect to individuals enrolled
in coverage through entities that have
a religious objection to contraceptive
coverage, the Departments considered
an approach under which contraceptive
coverage would be available through sep-
arate individual insurance policies that
cover only contraceptives and in which
participants, beneficiaries, and enrollees
would have to separately enroll if they
desired contraceptive coverage. Because
separate contraception-only coverage
would not comply with the individual
market reforms, it would be necessary
for the Departments to create, by regula-
tion, a new excepted benefit category for
individual contraceptive-only coverage.
169

Under this approach, issuers of this cov-
erage would receive FFE or SBE-FP user
fee reductions to pay for this coverage, as
the issuer generally would not realize off-
setting savings in pregnancy-related costs
when providing coverage separate from
the plan or coverage offered by the object-
ing entity. If the issuer of this coverage did
not participate in the FFE or an SBE-FP,
it could partner with an FFE or SBE-FP
issuer to receive the user fee adjustment.
The Departments decided against
this option for a number of reasons. The
Departments are concerned that issuers
would not offer these products to a suf-
ficient extent to ensure access nation-
wide, as commenters on the July 2016
RFI explained that it would be costly and
administratively burdensome for issuers
to develop and implement new eligibility,
enrollment, and claims-adjudication sys-
tems for contraception-only coverage, as
they would differ from their existing sys-
tems. Additionally, some State regulators
might not have authority or capacity to
approve single-benefit insurance policies
(other than dental or vision or disease-spe-
cific excepted benefits policies) within a
relatively short period of time after Federal
rules would permit these policies. Cost-
free contraception policies would also not
satisfy some State laws conditioning pol-
icy approval on a “reasonable premium”
or the existence of valid contracts because
the prospective policyholder would not
provide consideration in exchange for the
coverage.
The Departments also considered an
approach under which, if an objecting
entity designs or contracts for a health
plan without contraceptive coverage,
the contraceptive coverage requirement
would apply directly to the issuer, in the
case of a fully insured plan (that is, the
issuer would not be exempted from the
requirement on the basis of the object-
ing entity’s objection), or the third party
administrator, in the case of a self-insured
169
See, for example, section 2791(c)(2)(C) of the PHS Act.

Bulletin No. 2023–32 465 August 7, 2023
plan. The issuer or third party adminis-
trator would then be required to fulfill
its separate and independent obligation
to provide contraceptive coverage, in
the same manner as it is required to do
so with respect to a non-exempt entity.
However, the Departments are of the view
that there would not be legal authority for
imposing this obligation on a third party
administrator. With respect to issuers, the
Departments decided to solicit comment
on this approach, as further described in
section II.C.1 of this preamble.
With respect to the proposed changes
to 45 CFR 156.50(d), in addition to the
proposed submission requirements on the
part of the participating issuer, HHS con-
sidered whether to condition a provider
of contraceptive services’ participation in
the individual contraceptive arrangement
for eligible individuals on the provider
of contraceptive services’ agreement to
submit to HHS identifying information
for itself and the participating issuer, the
total dollar amount of the cost of furnish-
ing contraceptive services pursuant to the
individual contraceptive arrangement, and
an attestation that the costs for furnishing
such services were incurred in compliance
with the requirements of the individual
contraceptive arrangement. However,
HHS is of the view that conditioning par-
ticipation in the individual contraceptive
arrangement on compliance with a sepa-
rate submission requirement for providers
of contraceptive services would create
significant additional burden on providers
of contraceptive services and could deter
participation in the individual contracep-
tive arrangement, reducing access to con-
traceptive services for eligible individuals.
In addition to an arrangement with
a participating issuer on the FFE or an
SBE-FP, HHS considered whether to
allow a provider of contraceptive services
to arrange with a third party administrator
to submit documentation to HHS on their
behalf under 45 CFR 156.50(d). Under
this arrangement, a third party adminis-
trator entering into an agreement with a
provider of contraceptive services would
partner with an FFE or SBE-FP issuer to
receive reimbursement for its costs of fur-
nishing contraceptive services and then
the third party administrator would pay
the provider of contraceptive services.
Establishing a direct contractual relation-
ship between providers of contraceptive
services and third party administrators
was rejected as more administratively
complex because providers and third
party administrators do not have the same
existing contractual agreements to deliver
these services as providers and issuers
do. In contrast, the proposed approach of
direct agreements between providers of
contraceptive services and participating
issuers on the FFE or an SBE-FP builds
upon existing relationships between pro-
viders and issuers.
D. Paperwork Reduction Act—
Department of Health and Human
Services
Under the Paperwork Reduction Act of
1995 (PRA), HHS is required to provide
60-days’ notice in the Federal Register
and solicit public comment before a col-
lection of information requirement is sub-
mitted to OMB for review and approval.
To fairly evaluate whether an information
collection should be approved by OMB,
section 3506(c)(2)(A) of the PRA requires
that HHS solicit comment on the follow-
ing issues:
• The need for the information collec-
tion and its usefulness in carrying out
the proper functions of the agency.
• The accuracy of HHS’ estimate of the
information collection burden.
• The quality, utility, and clarity of the
information to be collected.
• Recommendations to minimize the
information collection burden on the
affected public, including automated
collection techniques.
1. Wage Estimates
HHS generally uses data from the
Bureau of Labor Statistics to derive aver-
age labor costs (including a 100 percent
increase for the cost of fringe benefits and
other indirect costs) for estimating the
burden associated with the information
collection requirements (ICRs).
170
Table 3
presents the mean hourly wage, the cost
of fringe benefits and other indirect costs,
and the adjusted hourly wage.
As indicated, employee hourly wage
estimates have been adjusted by a factor
of 100 percent. This is necessarily a rough
adjustment, both because the cost of fringe
benefits and other indirect costs vary sig-
nificantly across employers, and because
methods of estimating these costs vary
widely across studies. Nonetheless, there
is no practical alternative, and HHS is of
the view that doubling the hourly wage to
estimate total cost is a reasonably accurate
estimation method.
170
See May 2021 Bureau of Labor Statistics, Occupational Employment Statistics, National Occupational Employment and Wage Estimates, available at https://www.bls.gov/oes/current/
oes_nat.htm.
TABLE 3-- Adjusted Hourly Wages Used in Burden Estimates
Occupation Title
Occupational
Code
Mean Hourly
Wage
($/hour)
Cost of Fringe
Benefits and
Other Indirect
Costs ($/hour)
Adjusted Hourly
Wage ($/hour)
All Occupations00-0000$28.01$28.01$56.02
Actuary15-2011$60.24 $60.24$120.48
Insurance Claims and Policy Processing Clerks43-9041$22.02$22.02$44.04
Medical Secretaries and Administrative Assistants43-6013$19.11$19.11$38.22

August 7, 2023 466 Bulletin No. 2023–32
2. ICRs Regarding Adjustment of
Exchange User Fees – Participating
Issuers (45 CFR 156.50(d)(2))
The proposed provisions would require
a participating issuer on the FFE or an
SBE-FP seeking a user fee adjustment to
submit to HHS, in the year following the
calendar year in which the contraceptive
services for which reimbursement pur-
suant to the proposed individual contra-
ceptive arrangement were furnished, the
following: (A) identifying information for
the participating issuer and each provider
of contraceptive services with respect to
which the participating issuer seeks an
adjustment of any user fee; (B) docu-
mentation, with respect to each provider
of contraceptive services, demonstrating
that the participating issuer and provider
of contraceptive services have agreed
that the participating issuer will seek an
adjustment of the user fee to reimburse
the provider of contraceptive services for
the costs of furnishing contraceptive ser-
vices; and (C) for each provider of con-
traceptive services, the total dollar amount
of the costs of the contraceptive services
that were furnished during the applicable
calendar year pursuant to the proposed
individual contraceptive arrangement.
The proposed amendments also require
that a participating issuer on the FFE or
an SBE-FP receiving an adjustment to
any user fee under 45 CFR 156.50(d) for
a particular calendar year must maintain
documentation for 10 years demonstrat-
ing that it timely paid each provider of
contraceptive services, with respect to
which it received such adjustment, any
amount required under paragraph 45 CFR
156.50(d)(5).
Approximately 40 QHP issuers have
entered into arrangements with third
party administrators under the third party
administrator optional accommodation.
171

HHS anticipates that all (or some subset)
of those issuers that have already entered
into arrangements with third party admin-
istrators would be most likely to enter into
arrangements with providers of contracep-
tive services because they would already
be familiar with the process for seeking a
user fee adjustment related to payments
for contraceptive services. HHS antici-
pates there would be an increase in bur-
den associated with these proposed data
submission requirements for those issuers
that participate in the individual contra-
ceptive arrangement.
HHS would collect the required data
elements for participating issuers on the
FFE or an SBE-FP to receive a user fee
adjustment under the proposed individual
contraceptive arrangement through the
same web form online tool and at the same
time as participating issuers complete the
data submission process for the third party
administrator optional accommodation.
HHS previously estimated that for the
issuers that enter into arrangements with
third party administrators, each issuer
needs approximately 3 hours of actuar-
ial work, 5 hours of work by claims and
policy processing clerks, 2 hours for
legal counsel, and 1 hour for a top exec-
utive.
172
For issuers that would participate
in arrangements with providers of contra-
ceptive services, HHS estimates that each
issuer would incur an additional burden of
1 hour of work by an actuary (at $120.48
per hour), and 4 hours of work by claims
and policy processing clerks (at $44.04
per hour) including time for recordkeep-
ing. The total additional burden for each
issuer would be 5 hours annually, with an
equivalent cost of approximately $297.
Therefore, if all 40 issuers enter into
arrangements with providers of contra-
ceptive services, the total annual burden
associated with this requirement would
be approximately 200 hours, at a cost
of approximately $11,866. These costs
would be offset by Federal payments in
the form of user fee adjustments.
171
See 78 FR 39870 at 39875 through 39886 for additional background on the third party administrator optional accommodation.
172
This burden is currently approved under OMB control number 0938-1285 (CMS-10492, Coverage of Certain Preventive Services Under the Affordable Care Act: Data Submission
Requirements to Receive the federally-facilitated Exchange User Fee Adjustment).
TABLE 4-- Annual Burden and Costs for Participating Issuers
Estimated Number of
Respondents
Estimated Number of
Responses
Estimated Burden per
Response (hours)
Total Annual Burden
(hours)
Total Estimated Cost
40405200$11,866
HHS will revise the information col-
lection currently approved under OMB
control number 0938-1285 (CMS-10492),
to account for this new burden.
3. ICRs Regarding Adjustment of
Exchange User Fees – Participating
Providers of Contraceptive Services (45
CFR 156.50(d)(8))
The proposed provisions require that, as
a condition of participation in the proposed
individual contraceptive arrangement, pro-
viders of contraceptive services would be
required to maintain documentation for 10
years demonstrating that the costs of fur-
nishing contraceptive services were made
in compliance with the individual contra-
ceptive arrangement, including a represen-
tation by (or on behalf of) the individual
demonstrating the individual’s eligibility
for the individual contraceptive arrange-
ment, and the total dollar amount of the costs
of the contraceptive services furnished. As
discussed previously in section VI.B.2 of
this preamble, HHS estimates that at least
2,180 providers of contraceptive services
(1,090 pharmacies, and 1,090 clinicians
and facilities), and 126,400 individuals
would participate in the individual contra-
ceptive arrangement. Eligible individuals
could receive contraceptive services from
more than one provider of contraceptive
services (1,090 pharmacies, and 1,090 cli-
nicians or facilities). HHS anticipates that
eligible individuals would likely receive

Bulletin No. 2023–32 467 August 7, 2023
contraceptive services from more than
one provider of contraceptive services
(for example, during a visit to a clinician
or facility and during a visit to a pharmacy
to fill a prescription) and more than once
a year. HHS therefore estimates that each
provider of contraceptive services would
furnish contraceptive services to approx-
imately 116 eligible individuals annually,
on average.
HHS assumes that a provider of con-
traceptive services (for example, clini-
cian, facility, or pharmacy) would confirm
eligibility for each individual only once
annually and submit all claims for all eli-
gible individuals together to the issuer.
HHS estimates that for each provider of
contraceptive services, a medical secre-
tary would need, on average, approxi-
mately 1.5 hours (at $38.22 per hour) to
record each representation demonstrating
an individual’s eligibility for the indi-
vidual contraceptive arrangement, cal-
culate and record the costs associated
with the contraceptive services furnished
throughout the year, submit the amounts
to the participating issuer on the FFE or
an SBE-FP, and maintain records. The
total burden for each provider of contra-
ceptive services would be, on average, 1.5
hours for each individual, with an associ-
ated cost of $57.33. For 2,180 providers
of contraceptive services, the total burden
related to furnishing contraceptive ser-
vices to 126,400 individuals (assuming
each individual receives contraceptive
services from 2 providers on average
each year) would be 379,200 hours with
an associated cost of approximately $14.5
million. These estimates constitute the
lower bound, as burden and costs would
be higher if the number of eligible indi-
viduals is higher, or if eligible individuals
see more than two providers of contra-
ceptive services in a year. Providers of
contraceptive services would be likely to
incorporate these costs into their fees for
providing the contraceptive services.
TABLE 5-- Annual Burden and Costs for Participating Providers of Contraceptive Services
Provider or Facility
Type
Estimated Number
of Respondents
Estimated Number
of Responses
Estimated Burden
per Response
(hours)
Total Annual
Burden (hours)
Total Estimated
Cost
Clinicians or
Facilities
1,090126,4001.5189,600$7,246,512
Pharmacies1,090126,4001.5189,600$7,246,512
Total2,180252,8001.5379,200$14,493,024
HHS will revise the information col-
lection currently approved under OMB
control number 0938-1285 (CMS-10492),
to account for this new burden.
4. ICRs Regarding Confirmation
of Eligibility for the Individual
Contraceptive Arrangement
(45 CFR 147.131(a)(3)(ii))
Individuals could confirm their eli-
gibility for the individual contraceptive
arrangement with a provider of contracep-
tive services by providing a summary of
benefits that includes the relevant infor-
mation provided under the plan, or by
providing an attestation. These proposed
rules include, in 45 CFR 147.131(d)(2),
an example of language that could be used
by participants, beneficiaries and enroll-
ees or their authorized representatives
to confirm eligibility. The Departments
estimate that at least 126,400 individuals
would be eligible for the individual con-
traceptive arrangement and would need to
confirm their eligibility, and that each eli-
gible individual would need, on average,
5 minutes (at an equivalent cost of $56.02
per hour) to do so. The total burden for all
individuals to confirm their eligibility for
the individual contraceptive arrangement
to their provider of contraceptive services
would be approximately 10,533 hours
with an equivalent cost of approximately
$590,077. The Departments consider
these estimates to be a lower bound, as
the total burden and costs would be higher
if the number of eligible individuals that
take part in the individual contraceptive
arrangement is higher. As HHS, DOL,
and the Department of the Treasury share
jurisdiction, HHS would account for 50
percent of the burden, or approximately
5,267 hours annually, with an equivalent
annual cost of $295,039. DOL and the
Department of the Treasury would each
account for 25 percent of the burden, as
discussed in section VI.E of this preamble.
TABLE 6-- Annual Burden and Costs for Individuals
Estimated Number of
Respondents
Estimated Number of
Responses
Estimated Burden per
Response (hours)
Total Annual Burden
(hours)
Total Estimated Cost
63,20063,2000.085,267$295,039

August 7, 2023 468 Bulletin No. 2023–32
HHS will revise the information collec-
tion currently approved under OMB con-
trol number 0938-1344 (CMS-10653),
173

to account for this new burden.
5. ICRs Regarding the Existing Optional
Accommodation for Exempt Entities
(45 CFR 147.131(b))
An entity seeking to be treated as an
eligible organization for the existing
optional accommodation may self-certify
(by using EBSA Form 700), prior to the
beginning of the first plan year to which
an accommodation is to apply, that it
meets the definition of an eligible organi-
zation. An eligible organization may sub-
mit a notification to HHS as an alternative
to submitting the EBSA Form 700 to the
eligible organization’s health insurance
issuer or third party administrator.
The burden related to this optional
accommodation is currently approved
under OMB Control Number: 0938-1344
(CMS-10653). HHS will revise this infor-
mation collection to update the EBSA
Form 700 and model notice to HHS to
reflect the proposal to remove the moral
exemption. However, the burden estimates
would not be affected by the provisions in
these proposed rules as the Departments
did not previously expect any entities with
non-religious moral objections to use the
existing optional accommodation.
6. ICRs Regarding Notice of Availability
of Separate Payments for Contraceptive
Services (45 CFR 147.131(c))
A health insurance issuer or third party
administrator providing or arranging sepa-
rate payments for services for participants
and beneficiaries in insured plans (or stu-
dent enrollees and covered dependents in
student health insurance coverage) of eli-
gible organizations exercising the existing
optional accommodation is required to
provide a written notice to the plan partic-
ipants and beneficiaries (or student enroll-
ees and covered dependents) informing
them of the availability of these payments.
As discussed previously in section II.D.1
of this preamble, the Departments pro-
pose to amend the model language for this
notice. The burden related to this notice is
currently approved under OMB Control
Number: 0938-1344 (CMS-10653). HHS
will revise this information collection to
update the model notice to reflect this
proposed amendment. The Departments
previously estimated that 109 respondents
will incur an annual burden of 136.25
hours with an equivalent cost of approxi-
mately $7,000, and materials and mailing
cost of approximately $358,000 annually
to comply with this ICR. The burden and
cost estimates would not be affected by
the proposed change in model language
for the notice.
7. Summary of Annual Burden Estimates for Proposed Information Collection Requirements
TABLE 7-- Annual Recordkeeping and Reporting Requirements
Regulation
Section
OMB
Control
Number
RespondentsResponses
Burden per
Response
(hours)
Total
Annual
Burden
(hours)
Average
Hourly
Labor Cost
of Reporting
Total Labor
Cost of
Reporting
Total Cost
45 CFR
§ 156.50(d)(2)
0938-128540405200$59.33$11,866$11,866
45 CFR
§ 156.50(d)(8)
0938-12852,180252,8001.5379,200$38.22$14,493,024$14,493,024
45 CFR
§ 147.131(a)(3)
(ii)
0938-128563,20063,2000.085,267$56.02$295,039$295,039
Total65,42063,200384,667$14,799,928$14,799,928
8. Submission of PRA-Related
Comments
HHS has submitted a copy of these pro-
posed rules to OMB for its review of the
rule’s information collection and record-
keeping requirements. These require-
ments are not effective until they have
been approved by the OMB.
To obtain copies of the supporting
statement and any related forms for
the proposed collections, please visit
CMS’s website at https://www.cms.gov/
Regulations-and-Guidance/Legislation/
PaperworkReductionActof1995/PRA-
Listing. HHS invites public comments
on these potential information collection
requirements. If you wish to comment,
please submit your comments electron-
ically as specified in the ADDRESSES
section of these proposed rules and iden-
tify the rule (CMS–9903–P), the ICR’s
CFR citation, CMS ID number, and OMB
control number.
ICR-related comments are due [Insert
date 60 days after date of publication in
the FEDERAL REGISTER].
173
OMB Control Number: 0938-1344 (CMS-10653, Coverage of Certain Preventive Services Under the Affordable Care Act).

Bulletin No. 2023–32 469 August 7, 2023
E. Paperwork Reduction Act –
Department of Labor and Department of
the Treasury
As part of their continuing effort to
reduce paperwork and respondent bur-
den, the Department of Labor and the
Department of the Treasury conduct a pre-
clearance consultation program to allow
the general public and Federal agencies
to comment on proposed and continuing
collections of information in accordance
with the PRA.
174
This helps to ensure that
the public understands the Departments’
collection instructions, respondents can
provide the requested data in the desired
format, reporting burden (time and finan-
cial resources) is minimized, collection
instruments are clearly understood, and
the Departments can properly assess the
impact of collection requirements on
respondents.
Currently, the Department of Labor
and the Department of the Treasury are
soliciting comments concerning the pro-
posed information collection request
(ICR) included in the Coverage of
Certain Preventive Services under the
Affordable Care Act—Private Sector. To
obtain a copy of the ICR, contact the PRA
addressee shown below or go to http://
www.RegInfo.gov.
The Departments have submitted a
copy of these proposed rule to OMB in
accordance with 44 U.S.C. 3507(d) for
review of its information collections. The
Departments and OMB are particularly
interested in comments that:
• Evaluate whether the collection
of information is necessary for the func-
tions of the agency, including whether the
information will have practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and assump-
tions used;
• Enhance the quality, utility, and
clarity of the information to be collected
and minimize the burden of the collection
of information on those who are to respond,
including through the use of appropriate
automated, electronic, mechanical, or
other technological collection techniques
or other forms of information technology
(for example, permitting electronically
delivered responses).
Commenters may send their views on
the Departments’ PRA analysis in the same
way they send comments in response to
the proposed rule as a whole (for exam-
ple, through the www.regulations.gov
website), including as part of a comment
responding to the broader proposed rule.
Comments are due by [Insert date 60 days
after date of publication in the FEDERAL
REGISTER] to ensure their consideration.
PRA Addressee: Address requests for
copies of the ICR to James Butikofer,
Office of Research and Analysis, U.S.
Department of Labor, Employee Benefits
Security Administration, 200 Constitution
Avenue NW, Room N-5718, Washington,
DC 20210; or send to ebsa.opr@dol.gov.
1. ICRs Regarding Confirmation
of Eligibility for the Individual
Contraceptive Arrangement
(26 CFR 54.9815-2713A(a)(3)(iii),
29 CFR 2590.715-2713A(a)(3)(iii))
Individuals could confirm their eli-
gibility for the individual contraceptive
arrangement with a provider of contracep-
tive services by providing a summary of
benefits that includes the relevant infor-
mation provided under the plan, or by
providing an attestation. The Departments
propose, in 26 CFR 54.9815-2713A(a)
(3)(iii) and 29 CFR 2590.715-2713A(a)
(3)(iii), an example of language that
could be used by participants, benefi-
ciaries, and enrollees or their authorized
representatives to confirm eligibility.
The Departments estimate that at least
126,400 individuals would be eligible for
the individual contraceptive arrangement
and would need to confirm their eligibil-
ity, and that each eligible individual would
need, on average, 5 minutes (at an equiva-
lent cost of $68.96 per hour) to do so. The
total burden for all individuals to confirm
their eligibility for the individual contra-
ceptive arrangement to their provider of
contraceptive services would be approx-
imately 10,533 hours with an equivalent
cost of approximately $726,356. The
Departments consider these estimates
to be a lower bound, as the total burden
and costs would be higher if the number
of eligible individuals that take part in the
individual contraceptive arrangement is
higher. As HHS, DOL, and the Department
of the Treasury share jurisdiction, HHS
would account for 50 percent of the bur-
den, as discussed in section VI.D of this
preamble and DOL and the Department of
the Treasury would each account for 25
percent of the burden, or approximately
2,633 hours annually with an equivalent
annual cost of $181,572.
The burden related to the confirma-
tion of eligibility for the individual con-
traceptive arrangement will be included
under OMB Control Number: 1210-0150
(Coverage of Certain Preventive Services
under the Affordable Care Act—Private
Sector). The information collection has a
current expiration date of November 30,
2024.
2. ICRs Regarding the Existing
Optional Accommodation for Exempt
Entities (26 CFR 54.9815-2713A,
29 CFR 2590.715-2713A)
An entity seeking to be treated as an
eligible organization for the existing
optional accommodation may self-certify
(by using EBSA Form 700), prior to the
beginning of the first plan year to which
an accommodation is to apply, that it
meets the definition of an eligible organi-
zation. An eligible organization may sub-
mit a notification to HHS as an alternative
to submitting the EBSA Form 700 to the
eligible organization’s health insurance
issuer or third party administrator.
The burden related to this optional
accommodation is currently approved
under OMB Control Number: 1210-0150
(Coverage of Certain Preventive Services
under the Affordable Care Act—Private
Sector). The Departments will revise
this information collection to update the
EBSA Form 700 and model notice to HHS
to reflect the proposal to remove the moral
exemption. However, the burden estimates
would not be affected by the provisions in
these proposed rules, as the Departments
did not previously expect entities with
non-religious moral objections to use the
existing optional accommodation. The
information collection has a current expi-
ration date of November 30, 2024.
174
44 U.S.C. 3506(c)(2)(A) (1995).

August 7, 2023 470 Bulletin No. 2023–32
3. ICRs Regarding Notice of Availability
of Separate Payments for Contraceptive
Services (26 CFR 54.9815-2713A,
29 CFR 2590.715-2713A)
A health insurance issuer or third
party administrator providing or arrang-
ing separate payments for contraceptive
services for participants and beneficia-
ries in insured plans (or student enrollees
and covered dependents in student health
insurance coverage) of eligible organi-
zations exercising the existing optional
accommodation is required to provide a
written notice to such plan participants
and beneficiaries (or such student enroll-
ees and covered dependents) informing
them of the availability of such payments.
The Departments propose to amend the
model language for this notice. The burden
related to this notice is currently approved
under OMB Control Number: 1210-0150
(Coverage of Certain Preventive Services
under the Affordable Care Act—Private
Sector). The Departments will revise this
information collection to update the model
notice to reflect this proposed amendment.
The Departments previously estimated
that 109 respondents will incur an annual
burden of 136.25 hours with an equivalent
cost of approximately $7,000, and mate-
rials and mailing cost of approximately
$358,000 annually to comply with this
ICR. The burden and cost estimates would
not be affected by the proposed change in
model language for the notice. The infor-
mation collection has a current expiration
date of November 30, 2024.
4. Summary of Annual Burden Estimates
for Proposed Information Collection
Requirements
A summary of paperwork burden esti-
mates follows:
Type of Review: Revision
Agency: Employees Benefits Security
Administration, U.S. Department of
Labor.
Title: Coverage of Certain Preventive
Services under the Affordable Care Act—
Private Sector
OMB Control Number: 1210-0150.
Affected Public: Individuals and house-
holds, Businesses or other for-profits,
Not-for-profit institutions
Estimated Number of Respondents: 31,630
Estimated Number of Annual Responses:
329,255
Frequency of Response: Annual
Estimated Total Annual Burden Hours:
2,669
Estimated Total Annual Burden Cost:
$80,873
Agency: Internal Revenue Service,
Department of the Treasury
Title: Coverage of Certain Preventive
Services under the Affordable Care Act –
Private Sector
OMB Control Number: 1545-NEW.
Affected Public: Individuals and house-
holds, Businesses or other for-profits,
Not-for-profit institutions
Estimated Number of Respondents: 31,630
Estimated Number of Annual Responses:
329,255
Frequency of Response: Annual
Estimated Total Annual Burden Hours:
2,669
Estimated Total Annual Burden Cost:
$80,873
F. Regulatory Flexibility Act
The Regulatory Flexibility Act, (5
U.S.C. 601, et seq.), requires agencies
to prepare an initial regulatory flexibil-
ity analysis to describe the impact of
proposed rules on small entities, unless
the head of the agency can certify that
the rules will not have a significant eco-
nomic impact on a substantial number of
small entities. The RFA generally defines
a “small entity” as (1) a proprietary firm
meeting the size standards of the Small
Business Administration (SBA), (2) a
not-for-profit organization that is not
dominant in its field, or (3) a small gov-
ernment jurisdiction with a population
of less than 50,000. States and individ-
uals are not included in the definition of
“small entity.” The Departments use a
change in revenues of more than 3 to 5
percent as its measure of significant eco-
nomic impact on a substantial number of
small entities.
The provisions in these proposed rules
would affect health insurance issuers
and providers that furnish contraceptive
services (including clinicians, facilities,
and pharmacies). Health insurance issu-
ers would be classified under the North
American Industry Classification System
(NAICS) code 524114 (Direct Health and
Medical Insurance Carriers). According
to SBA size standards,
175
entities with
average annual receipts of $41.5 million
or less are considered small entities for
this NAICS code. Issuers could possibly
be classified in 621491 (HMO Medical
Centers) and, if this is the case, the SBA
size standard would be $39 million or less.
The Departments expect that few, if any,
insurance companies underwriting com-
prehensive health insurance policies (in
contrast, for example, to travel insurance
policies or dental discount policies) fall
below these size thresholds. Based on data
from medical loss ratio (MLR) annual
report
176
submissions for the 2020 MLR
reporting year, approximately 78 out of
481 issuers of health insurance coverage
nationwide had total premium revenue
of $41.5 million or less. This estimate
may overstate the actual number of small
health insurance companies that may be
affected, since over 72 percent of these
small companies belong to larger hold-
ing groups, and many, if not all, of these
small companies are likely to have non-
health lines of business that will result in
their revenues exceeding $41.5 million. In
addition, costs incurred by issuers would
be offset by Federal payments in the form
of user fee adjustments.
Clinicians and facilities would be clas-
sified under either NAICS code 621111
(Offices of Physicians) with a size stan-
dard of $14 million or less or NAICS
code 621399 (Offices of All Other
Miscellaneous Health Practitioners) with
a size standard of $9 million or less.
Facilities could also be classified under
NAICS code 621410 (Family Planning
Centers), with a size standard of $16.5
million or less. The Departments estimate
that approximately 1,090 clinicians and
facilities would participate in the individ-
ual contraceptive arrangement and would
175
https://www.sba.gov/document/support--table-size-standards, as of October 2022.
176
Available at https://www.cms.gov/CCIIO/Resources/Data-Resources/mlr.html.

Bulletin No. 2023–32 471 August 7, 2023
incur costs related to signing agreements
with participating issuers, eligibility ver-
ification, and recordkeeping. Most, if not
all, participating clinicians and facilities
might be considered small entities. As dis-
cussed earlier in section VI.D of this pre-
amble, these costs per clinician or facility
are estimated to be approximately $10,895
annually
177
and would likely be accounted
for in amounts submitted to participating
issuers for reimbursement by the Federal
Government. The Departments assume
that clinicians or facilities would not par-
ticipate in the individual contraceptive
arrangement if it results in a decline in
their revenues or profitability.
Pharmacies would be classified under
NAICS code 446110 (Pharmacies and
Drug Stores) with a size standard of
$30 million or less. The Departments
assume that 10 pharmacy chains would
participate in the individual contracep-
tive arrangement and would incur costs
related to signing agreements with par-
ticipating issuers, eligibility verification,
and recordkeeping. As discussed earlier
in section VI.D of this preamble, these
costs per pharmacy chain are estimated
to be approximately $728,781 annually.
178

These costs would likely be accounted
for in amounts submitted to participating
issuers for reimbursement by the Federal
Government. The major pharmacy chains
would not fall below this size threshold.
The Departments assume that indepen-
dent pharmacies or small pharmacy chains
would not participate in the individual
contraceptive arrangement if it results in
a decline in their revenues or profitability.
Therefore, the Departments do not
anticipate that participation in the individ-
ual contraceptive arrangement would have
a significant effect on a substantial num-
ber of small entities. The Departments
seek comment on this analysis.
In addition, section 1102(b) of the
Social Security Act requires HHS to pre-
pare a regulatory impact analysis if a rule
may have a significant economic impact
on the operations of a substantial number
of small rural hospitals. This analysis must
conform to the provisions of section 604
of the RFA. This rule is not subject to sec-
tion 1102 of the Social Security Act, HHS
does not expect that these proposed rules
would have a significant economic impact
on the operations of a substantial number
of small rural hospitals. Some providers of
contraceptive services might be affiliated
with small rural hospitals, and these pro-
viders might choose to participate in the
individual contraceptive arrangement and
therefore incur related costs, which would
ultimately be reimbursed by the Federal
Government.
G. Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates
Reform Act of 1995 (UMRA) requires that
agencies assess anticipated costs and ben-
efits and take certain other actions before
issuing a proposed rule or any final rule
for which a general notice of proposed
rulemaking was published that includes
any Federal mandate that may result in
expenditures in any 1 year by State, local,
or Tribal governments, in the aggregate,
or by the private sector, of $100 million in
1995 dollars, updated annually for infla-
tion. In 2022, that threshold is approxi-
mately $165 million. As discussed earlier
in section VI of this preamble, providers
of contraceptive services and issuers that
choose to participate in the individual
contraceptive arrangement would incur
costs to comply with the proposed pro-
visions of these proposed rules, which
would likely be reimbursed and ultimately
incurred by the Federal Government.
The Departments estimate the combined
impact on State, local, or Tribal govern-
ments and the private sector would not be
above the threshold.
H. Federalism
Executive Order 13132 outlines funda-
mental principles of federalism. It requires
adherence to specific criteria by Federal
agencies in formulating and implement-
ing policies that have “substantial direct
effects” on the states, the relationship
between the national government and
states, or on the distribution of power and
responsibilities among the various levels
of government. Federal agencies promul-
gating regulations that have these federal-
ism implications must consult with State
and local officials and describe the extent
of their consultation and the nature of the
concerns of State and local officials in the
preamble to the proposed rules.
The Departments do not anticipate that
these proposed rules would have any fed-
eralism implications or limit the policy
making discretion of the states, in com-
pliance with the requirement of Executive
Order 13132.
While developing this rule, the
Departments attempted to balance the
states’ interests in regulating health insur-
ance issuers with the need to ensure mar-
ket stability. By doing so, the Departments
complied with the requirements of
Executive Order 13132.
List of Subjects
26 CFR Part 54
Excise taxes, Health care, Health insur-
ance, Pensions, Reporting and record-
keeping requirements.
29 CFR Part 2590
Continuation coverage, Disclosure,
Employee benefit plans, Group health
plans, Health care, Health insurance,
Medical child support, Reporting and
recordkeeping requirements.
45 CFR Part 147
Aged, Citizenship and naturaliza-
tion, Civil rights, Health care, Health
insurance, Individuals with disabilities,
Intergovernmental relations, Reporting
and recordkeeping requirements, Sex
discrimination.
45 CFR Part 156
Administrative practice and proce-
dure, Advertising, Advisory committees,
177
Total administrative costs for 1,090 clinicians and facilities = $4,629,069 in administrative costs for signed agreements + $7,246,512 in administrative costs related to providing contracep-
tive services = $11,875,581. Average administrative costs for each clinician or facility = $10,895.
178
Total administrative costs for 10 pharmacy chains = $41,300 in administrative costs for signed agreements + $7,246,512 in administrative costs related to providing contraceptive services
= $7,287,812. Average administrative costs for each pharmacy chain = $728,781.

August 7, 2023 472 Bulletin No. 2023–32
Aged, Alaska, Brokers, Citizenship and
naturalization, Civil rights, Conflicts of
interests, Consumer protection, Grant
programs-health, Grants administration,
Health care, Health insurance, Health
maintenance organizations (HMO), Health
records, Hospitals, Indians, Individuals
with disabilities, Intergovernmental rela-
tions, Loan programs-health, Medicaid,
Organization and functions (Government
agencies), Prescription drugs, Public assis-
tance programs, Reporting and record-
keeping requirements, Sex discrimination,
State and local governments, Sunshine
Act, Technical assistance, Women, Youth.
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Accordingly, the Treasury Department
and the IRS propose to amend 26 CFR
part 54 as follows:
PART 54 – PENSION EXCISE TAXES
Paragraph 1. The authority citation for
part 54 continues to read as follows:
Authority: 26 U.S.C. 7805 * * *
Par 2. Section 54.9815-2713 is
amended by revising paragraphs (a)(1)
introductory text and (a)(1)(iv) to read as
follows:
§ 54.9815-2713 Coverage of preventive
health services.
(a) * * *
(1) In general. Beginning at the time
described in paragraph (b) of this section,
a group health plan, or a health insurance
issuer offering group health insurance
coverage, must provide coverage for and
must not impose any cost-sharing require-
ments (such as a copayment, coinsurance,
or a deductible) for –
* * * * *
(iv) With respect to women, such
additional preventive care and screen-
ings not described in paragraph (a)(1)
(i) of this section as provided for in evi-
dence-informed comprehensive guide-
lines supported by the Health Resources
and Services Administration for purposes
of section 2713(a)(4) of the Public Health
Service Act, subject to 45 CFR 147.131
and 147.132.
* * * * *
Par 3. Section 54.9815-2713A is
revised to read as follows:
§ 54.9815-2713A Alternate availability
of certain preventive health services.
(a) Organizations eligible for optional
accommodations and individuals eligible
for individual contraceptive arrange-
ments. (1) An eligible organization is an
organization that meets the criteria of
paragraphs (a)(1)(i) through (iii) of this
section.
(i) The organization is an objecting
entity described in 45 CFR 147.132(a)(1)
(i) through (iii);
(ii) Notwithstanding its exempt status
under 45 CFR 147.132(a), the organiza-
tion voluntarily seeks to be considered
an eligible organization to invoke the
optional accommodation under paragraph
(b) or (c) of this section; and
(iii) The organization self-certifies
in the form and manner specified by the
Secretary of Labor or provides notice
to the Secretary of Health and Human
Services as described in paragraph (b) or
(c) of this section. To qualify as an eligible
organization, the organization must make
such self-certification or notice available
for examination upon request by the first
day of the first plan year to which the
accommodation in paragraph (b) or (c) of
this section applies. The self-certification
or notice must be executed by a person
authorized to make the certification or
provide the notice on behalf of the orga-
nization and must be maintained in a man-
ner consistent with the record retention
requirements under section 107 of ERISA.
(2) An eligible organization may
revoke its use of the accommodation
under paragraph (b) or (c) of this section,
and its issuer or third party administra-
tor must provide participants and bene-
ficiaries written notice of the revocation;
the eligible organization’s revocation of
the accommodation will be effective no
sooner than the first day of the first plan
year that begins on or after 30 days after
the date of the revocation.
(3) An eligible individual is an individ-
ual who–
(i) Is a participant or beneficiary
enrolled in a group health plan established
or maintained by an objecting entity
described in 45 CFR 147.132(a) that, to
the extent eligible, has not invoked the
optional accommodation under paragraph
(b) or (c) of this section; and
(ii) Confirms (such as by making an
attestation) to a provider of contraceptive
services that agrees to meet the conditions
in paragraph (d)(1) of this section that the
individual is enrolled in a group health
plan or group health insurance coverage
that does not provide coverage for all or a
subset of contraceptive services as gener-
ally required under § 54.9815-2713(a)(1)
(iv).
(b) Optional accommodation – self-in-
sured group health plans. (1) A group
health plan established or maintained
by an eligible organization that provides
benefits on a self-insured basis may vol-
untarily elect an optional accommodation
under which its third party administra-
tor(s) will provide or arrange payments
for all or a subset of contraceptive services
for one or more plan years. To invoke the
optional accommodation process:
(i) Except as provided in paragraph (b)
(5) of this section, the eligible organiza-
tion or its plan must contract with one or
more third party administrators.
(ii) The eligible organization must
provide either a copy of the self-certifi-
cation to each third party administrator
it contracts with to provide administra-
tive services in connection with the plan
or a notice to the Secretary of Health and
Human Services that it is an eligible orga-
nization and of its objection as described
in 45 CFR 147.132 to coverage of all or a
subset of contraceptive services.
(A) When a copy of the self-certifica-
tion is provided directly to a third party
administrator, the self-certification must
include a notice that obligations of the
third party administrator are set forth in in
29 CFR 2510.3-16 and this section.
(B) When a notice is provided to the
Secretary of Health and Human Services,
the notice must include the name of the
eligible organization; a statement that it
objects as described in 45 CFR 147.132
to coverage of some or all contraceptive
services (including an identification of the
subset of contraceptive services the eligi-
ble organization objects to covering, if
applicable), but that it would like to elect
the optional accommodation process; the
plan name and type (that is, whether it is

Bulletin No. 2023–32 473 August 7, 2023
student health insurance coverage within
the meaning of 45 CFR 147.145(a) or a
church plan within the meaning of sec-
tion 414(e) or section 3(33) of ERISA);
and the name and contact information
for any of the plan’s third party admin-
istrators. If there is a change in any of
the information required to be included
in the notice, the eligible organization
must provide updated information to the
Secretary of Health and Human Services
for the optional accommodation process
to remain in effect. The Department of
Labor (working with the Department of
Health and Human Services) will send
a separate notification to each of the
plan’s third party administrators inform-
ing the third party administrator that the
Secretary of Health and Human Services
has received a notice under paragraph (b)
(1)(ii) of this section and describing the
obligations of the third party administra-
tor under 29 CFR 2510.3-16(c) and this
section.
(2) If a third party administrator
receives a copy of the self-certification
from an eligible organization or a notifi-
cation from the Department of Labor, as
described in paragraph (b)(1)(ii) of this
section and is willing to enter into or
remain in a contractual relationship with
the eligible organization or its plan to pro-
vide administrative services for the plan,
then the third party administrator will pro-
vide or arrange payments for contracep-
tive services, using one of the following
methods –
(i) Provide payments for the contra-
ceptive services for plan participants
and beneficiaries without imposing any
cost-sharing requirements (such as a
copayment, coinsurance, or a deductible),
premium, fee, or other charge, or any por-
tion thereof, directly or indirectly, on the
eligible organization, the group health
plan, or plan participants or beneficiaries;
or
(ii) Arrange for an issuer or other entity
to provide payments for contraceptive
services for plan participants and benefi-
ciaries without imposing any cost-sharing
requirements (such as a copayment, coin-
surance, or a deductible), premium, fee,
or other charge, or any portion thereof,
directly or indirectly, on the eligible orga-
nization, the group health plan, or plan
participants or beneficiaries.
(3) If a third party administrator pro-
vides or arranges payments for contra-
ceptive services in accordance with either
paragraph (b)(2)(i) or (ii) of this section,
the costs of providing or arranging such
payments may be reimbursed through
an adjustment to the federally-facili-
tated Exchange or State Exchange on the
Federal platform user fees for a participat-
ing issuer pursuant to 45 CFR 156.50(d).
(4) A third party administrator may not
require any documentation other than a
copy of the self-certification from the eli-
gible organization or notification from the
Department of Labor described in para-
graph (b)(1)(ii) of this section.
(5) Where an otherwise eligible organi-
zation does not contract with a third party
administrator and it files a self-certifica-
tion or notice under paragraph (b)(1)(ii)
of this section, the obligations under para-
graph (b)(2) of this section do not apply,
and the otherwise eligible organization is
not required to provide coverage or pay-
ments for contraceptive services to which
it objects. The plan administrator for that
otherwise eligible organization may, if it
and the otherwise eligible organization
choose, arrange for payments for contra-
ceptive services from an issuer or other
entity in accordance with paragraph (b)
(2)(ii) of this section, and such issuer or
other entity may receive reimbursements
in accordance with paragraph (b)(3) of
this section.
(6) Where an otherwise eligible orga-
nization is a church plan within the mean-
ing of section 3(33) of ERISA or section
414(e) and it files a self-certification or
notice under paragraph (b)(1)(ii) of this
section, the obligations under paragraph
(b)(2) of this section do not apply, and the
otherwise eligible organization is under
no requirement to provide coverage or
payments for contraceptive services to
which it objects. The third party adminis-
trator for that otherwise eligible organiza-
tion may, if it and the otherwise eligible
organization choose, provide or arrange
payments for contraceptive services in
accordance with paragraph (b)(2)(i) or
(ii) of this section, and receive reimburse-
ments in accordance with paragraph (b)(3)
of this section.
(c) Optional accommodation – insured
group health plans – (1) A group health
plan established or maintained by an
eligible organization that provides ben-
efits through one or more group health
insurance issuers may voluntarily elect
an optional accommodation under which
its health insurance issuer(s) will provide
payments for all or a subset of contracep-
tive services for one or more plan years.
To invoke the optional accommodation
process:
(i) The eligible organization or its plan
must contract with one or more health
insurance issuers.
(ii) The eligible organization must pro-
vide either a copy of the self-certification
to each issuer it contracts with to provide
coverage in connection with the plan or
a notice to the Secretary of Health and
Human Services that it is an eligible orga-
nization and of its objection as described
in 45 CFR 147.132 to coverage for all or a
subset of contraceptive services.
(A) When a copy of the self-certifica-
tion is provided directly to an issuer, the
issuer has sole responsibility for provid-
ing such coverage in accordance with
§ 54.9815-2713(a)(1)(iv).
(B) When a notice is provided to the
Secretary of Health and Human Services,
the notice must include the name of the
eligible organization; a statement that it
objects as described in 45 CFR 147.132
to coverage of some or all contracep-
tive services (including an identification
of the subset of contraceptive services
to which coverage the eligible organi-
zation objects, if applicable), but that it
would like to elect the optional accom-
modation process; the plan name and
type (that is, whether it is student health
insurance coverage within the meaning
of 45 CFR 147.145(a) or a church plan
within the meaning of section 414(e) or
section 3(33) of ERISA); and the name
and contact information for any of the
plan’s health insurance issuers. If there
is a change in any of the information
required to be included in the notice,
the eligible organization must provide
updated information to the Secretary
of Health and Human Services for the
optional accommodation to remain in
effect. The Department of Health and
Human Services will send a separate
notification to each of the plan’s health
insurance issuers informing the issuer
that the Secretary of Health and Human
Services has received a notice under

August 7, 2023 474 Bulletin No. 2023–32
paragraph (c)(1)(ii) of this section and
describing the obligations of the issuer
under this section.
(2) If an issuer receives a copy of
the self-certification from an eligible
organization or the notification from
the Department of Health and Human
Services as described in paragraph (c)
(1)(ii) of this section and does not have
an objection as described in 45 CFR
147.132 to providing the contraceptive
services identified in the self-certification
or the notification from the Department
of Health and Human Services, the issuer
will provide payments for contraceptive
services as follows –
(i) The issuer must expressly exclude
contraceptive coverage from the group
health insurance coverage provided in
connection with the group health plan and
provide separate payments for any con-
traceptive services required to be covered
under § 54.9815-2713(a)(1)(iv) for plan
participants and beneficiaries for so long
as they remain enrolled in the plan.
(ii) With respect to payments for con-
traceptive services, the issuer may not
impose any cost-sharing requirements
(such as a copayment, coinsurance, or
a deductible), premium, fee, or other
charge, or any portion thereof, directly
or indirectly, on the eligible organization,
the group health plan, or plan participants
or beneficiaries. The issuer must segre-
gate premium revenue collected from
the eligible organization from the monies
used to provide payments for contracep-
tive services. The issuer must provide
payments for contraceptive services
in a manner that is consistent with the
requirements under sections 2706, 2709,
2711, 2713, and 2719 of the PHS Act, as
incorporated into section 9815, and sec-
tion 9822. If the group health plan of the
eligible organization provides coverage
for some but not all of any contraceptive
services required to be covered under
§ 54.9815-2713(a)(1)(iv), the issuer is
required to provide payments only for
those contraceptive services for which
the group health plan does not provide
coverage. However, the issuer may pro-
vide payments for all contraceptive ser-
vices at the issuer’s option.
(3) A health insurance issuer may not
require any documentation other than
a copy of the self-certification from the
eligible organization or the notifica-
tion from the Department of Health and
Human Services described in paragraph
(c)(1)(ii) of this section.
(d) Notice of availability of separate
payments for contraceptive services –
self-insured and insured group health
plans. For each plan year to which the
optional accommodation in paragraph (b)
or (c) of this section is to apply, a third
party administrator required to provide
or arrange payments for contraceptive
services pursuant to paragraph (b) of this
section, and an issuer required to pro-
vide payments for contraceptive services
pursuant to paragraph (c) of this section,
must provide to plan participants and ben-
eficiaries written notice of the availability
of separate payments for contraceptive
services contemporaneous with (to the
extent possible), but separate from, any
application materials distributed in con-
nection with enrollment (or re-enrollment)
in group health coverage that is effective
beginning on the first day of each applica-
ble plan year. The notice must specify that
the eligible organization does not admin-
ister or fund contraceptive benefits, but
that the third party administrator or issuer,
as applicable, provides or arranges sepa-
rate payments for contraceptive services,
and must provide contact information for
questions and complaints. The following
model language, or substantially simi-
lar language, may be used to satisfy the
notice requirement of this paragraph (d):
“Your employer has certified that your
group health plan qualifies for an accom-
modation with respect to the Federal
requirement to cover contraceptive ser-
vices for women, including all Food and
Drug Administration-approved, cleared,
or granted contraceptives, as prescribed
by a health care provider, without cost
sharing. This means that your employer
will not contract, arrange, pay, or refer for
contraceptive coverage. Instead, [name of
third party administrator/health insurance
issuer] will provide separate payments
for contraceptive services that you use,
without cost sharing and at no other cost,
for so long as you are enrolled in your
group health plan. Your employer will not
administer or fund these payments. If you
have any questions about this notice, con-
tact [contact information for third party
administrator/health insurance issuer].”
(e) Individual contraceptive arrange-
ments for eligible individuals. (1) An eli-
gible individual may elect an individual
contraceptive arrangement under which a
willing provider of contraceptive services
furnishes the eligible individual with con-
traceptive services that a group health
plan or health insurance issuer would
have been required to cover pursuant to
§ 54.9815-2713(a)(1)(iv), if not for the
plan’s or issuer’s exempt status under 45
CFR 147.132(a). Under this individual
contraceptive arrangement, the willing
provider of contraceptive services must
furnish contraceptive services (including
items and services that are integral to the
furnishing of the contraceptive services)
to the eligible individual without impos-
ing a fee or charge of any kind, directly
or indirectly, on the eligible individual or
any other entity for the cost of the items
and services or any portion thereof, except
that the provider of contraceptive services
may seek payment from, and be reim-
bursed by, an issuer for the costs of pro-
viding the items and services through an
adjustment to the issuer’s federally-facil-
itated Exchange or State Exchange on the
Federal platform user fees pursuant to 45
CFR 156.50(d).
(2) The following language may, but
is not required to, be used by a partic-
ipant or beneficiary (or an authorized
representative of a participant or ben-
eficiary) to confirm to a provider of
contraceptive services that the plan or
coverage is sponsored, provided, or
arranged by an objecting entity and does
not provide coverage for all or a subset
of contraceptive services as generally
required under § 54.9815-2713(a)(1)
(iv): “I certify that I am enrolled (or am
an authorized representative of a person
who is enrolled) in an employer-spon-
sored health plan or health insurance
coverage that does not provide cover-
age for all or a subset of contraceptive
services as generally required under the
Affordable Care Act.” A participant or
beneficiary (or an authorized representa-
tive of a participant or beneficiary) may
use other means to confirm to a provider
of contraceptive services that the plan
or coverage is sponsored, provided, or
arranged by an objecting entity and does
not provide coverage for all or a subset
of contraceptive services.

Bulletin No. 2023–32 475 August 7, 2023
(f) Reliance – insured group health
plans. (1) If an issuer reasonably and in
good faith relies on a representation by an
eligible organization indicating that the
organization is eligible for the accommo-
dation in paragraph (c) of this section, and
the representation is later determined to be
incorrect, the issuer is considered to com-
ply with any applicable requirement under
§ 54.9815-2713(a)(1)(iv) to provide con-
traceptive coverage if the issuer complies
with the obligations under this section
applicable to such issuer.
(2) A group health plan is considered
to comply with any applicable require-
ment under § 54.9815-2713(a)(1)(iv) to
provide contraceptive coverage if the plan
complies with its obligations under para-
graph (c) of this section, without regard
to whether the issuer complies with the
obligations under this section applicable
to such issuer.
(g) Definitions. (1) For the purposes of
this section, reference to “contraceptive”
services, benefits, or coverage includes
contraceptive or sterilization items, proce-
dures, or services, or related patient educa-
tion or counseling, to the extent specified
for purposes of § 54.9815-2713(a)(1)(iv).
(2) For the purposes of this section, the
term “provider of contraceptive services”
means any health care provider (including a
clinician, pharmacy, or other facility) acting
within the scope of that provider’s license,
certification, or authority under applicable
law to provide contraceptive services (as
defined in paragraph (g)(1) of this section).
(h) Severability. Any provision of this
section held to be invalid or unenforceable
by its terms, or as applied to any person or
circumstance, shall be construed so as to
continue to give maximum effect to the pro-
vision permitted by law, unless such holding
shall be one of utter invalidity or unenforce-
ability, in which event the provision shall
be severable from this section and shall not
affect the remainder thereof or the applica-
tion of the provision to persons not similarly
situated or to dissimilar circumstances.
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
For the reasons stated in the pream-
ble, the Department of Labor proposes
to amend 29 CFR part 2590 as set forth
below:
PART 2590 – RULES AND
REGULATIONS FOR GROUP
HEALTH PLANS
4. The authority citation for part 2590
continues to read as follows:
Authority: 29 U.S.C. 1027, 1059, 1135,
1161–1168, 1169, 1181–1183, 1181 note,
1185, 1185a–n, 1191, 1191a, 1191b, and
1191c; sec. 101(g), Pub. L.104–191, 110
Stat. 1936; sec. 401(b), Pub. L. 105–200,
112 Stat. 645 (42 U.S.C. 651 note); sec.
512(d), Pub. L. 110–343, 122 Stat. 3881;
sec. 1001, 1201, and 1562(e), Pub. L. 111–
148, 124 Stat. 119, as amended by Pub. L.
111–152, 124 Stat. 1029; Division M, Pub.
L. 113–235, 128 Stat. 2130; Pub. L. 116–
260 134 Stat. 1182; Secretary of Labor’s
Order 1–2011, 77 FR 1088 (Jan. 9, 2012).
5. Section 2590.715-2713 is amended
by revising paragraphs (a)(1) introductory
text and (a)(1)(iv) to read as follows:
§ 2590.715-2713 Coverage of
preventive health services.
(a) * * *
(1) In general. Beginning at the time
described in paragraph (b) of this section,
a group health plan, or a health insurance
issuer offering group health insurance
coverage, must provide coverage for and
must not impose any cost-sharing require-
ments (such as a copayment, coinsurance,
or a deductible) for –
* * * * *
(iv) With respect to women, such addi-
tional preventive care and screenings not
described in paragraph (a)(1)(i) of this sec-
tion as provided for in evidence-informed
comprehensive guidelines supported
by the Health Resources and Services
Administration for purposes of section
2713(a)(4) of the Public Health Service Act,
subject to 45 CFR 147.131 and 147.132; and
* * * * *
6. Section 2590.715-2713A is revised
to read as follows:
§ 2590.715-2713A Alternate availability
of certain preventive health services.
(a) Organizations eligible for optional
accommodations and individuals
eligible for individual contraceptive
arrangements.
(1) An eligible organization is an
organization that meets the criteria of
paragraphs (a)(1)(i) through (iii) of this
section.
(i) The organization is an objecting
entity described in 45 CFR 147.132(a)(1)
(i) through (iii);
(ii) Notwithstanding its exempt status
under 45 CFR 147.132(a), the organiza-
tion voluntarily seeks to be considered
an eligible organization to invoke the
optional accommodation under paragraph
(b) or (c) of this section; and
(iii) The organization self-certifies
in the form and manner specified by
the Secretary or provides notice to the
Secretary of Health and Human Services
as described in paragraph (b) or (c) of this
section. To qualify as an eligible organi-
zation, the organization must make such
self-certification or notice available for
examination upon request by the first day
of the first plan year to which the accom-
modation in paragraph (b) or (c) of this
section applies. The self-certification or
notice must be executed by a person autho-
rized to make the certification or provide
the notice on behalf of the organization
and must be maintained in a manner con-
sistent with the record retention require-
ments under section 107 of ERISA.
(2) An eligible organization may
revoke its use of the accommodation
under paragraph (b) or (c) of this section,
and its issuer or third party administra-
tor must provide participants and bene-
ficiaries written notice of the revocation;
the eligible organization’s revocation of
the accommodation will be effective no
sooner than the first day of the first plan
year that begins on or after 30 days after
the date of the revocation.
(3) An eligible individual is an individ-
ual who–
(i) Is a participant or beneficiary
enrolled in a group health plan established
or maintained by an objecting entity
described in 45 CFR 147.132(a) that, to
the extent eligible, has not invoked the
optional accommodation under paragraph
(b) or (c) of this section; and
(ii) Confirms (such as by making an
attestation) to a provider of contraceptive
services that agrees to meet the conditions
in paragraph (d)(1) of this section that the

August 7, 2023 476 Bulletin No. 2023–32
individual is enrolled in a group health
plan or group health insurance coverage
that does not provide coverage for all or
a subset of contraceptive services as gen-
erally required under § 2590.715-2713(a)
(1)(iv).
(b) Optional accommodation – self-in-
sured group health plans. (1) A group
health plan established or maintained
by an eligible organization that provides
benefits on a self-insured basis may vol-
untarily elect an optional accommodation
under which its third party administra-
tor(s) will provide or arrange payments
for all or a subset of contraceptive services
for one or more plan years. To invoke the
optional accommodation process:
(i) Except as provided in paragraph (b)
(5) of this section, the eligible organiza-
tion or its plan must contract with one or
more third party administrators.
(ii) The eligible organization must
provide either a copy of the self-certifi-
cation to each third party administrator
it contracts with to provide administra-
tive services in connection with the plan
or a notice to the Secretary of Health and
Human Services that it is an eligible orga-
nization and of its objection as described
in 45 CFR 147.132 to coverage of all or a
subset of contraceptive services.
(A) When a copy of the self-certifica-
tion is provided directly to a third party
administrator, the self-certification must
include a notice that obligations of the
third party administrator are set forth
in § 2510.3-16 of this chapter and this
section.
(B) When a notice is provided to the
Secretary of Health and Human Services,
the notice must include the name of the
eligible organization; a statement that it
objects as described in 45 CFR 147.132
to coverage of some or all contraceptive
services (including an identification of the
subset of contraceptive services the eli-
gible organization objects to covering, if
applicable), but that it would like to elect
the optional accommodation process; the
plan name and type (that is, whether it is
student health insurance coverage within
the meaning of 45 CFR 147.145(a) or a
church plan within the meaning of section
414(e) of the Internal Revenue Code or
section 3(33) of ERISA); and the name and
contact information for any of the plan’s
third party administrators. If there is a
change in any of the information required
to be included in the notice, the eligible
organization must provide updated infor-
mation to the Secretary of Health and
Human Services for the optional accom-
modation process to remain in effect.
The Department of Labor (working with
the Department of Health and Human
Services) will send a separate notification
to each of the plan’s third party adminis-
trators informing the third party admin-
istrator that the Secretary of Health and
Human Services has received a notice
under paragraph (b)(1)(ii) of this section
and describing the obligations of the third
party administrator under § 2510.3-16(c)
of this chapter and this section.
(2) If a third party administrator
receives a copy of the self-certification
from an eligible organization or a notifi-
cation from the Department of Labor, as
described in paragraph (b)(1)(ii) of this
section and is willing to enter into or
remain in a contractual relationship with
the eligible organization or its plan to pro-
vide administrative services for the plan,
then the third party administrator will pro-
vide or arrange payments for contracep-
tive services, using one of the following
methods –
(i) Provide payments for the contra-
ceptive services for plan participants
and beneficiaries without imposing any
cost-sharing requirements (such as a
copayment, coinsurance, or a deductible),
premium, fee, or other charge, or any por-
tion thereof, directly or indirectly, on the
eligible organization, the group health
plan, or plan participants or beneficiaries;
or
(ii) Arrange for an issuer or other entity
to provide payments for contraceptive
services for plan participants and benefi-
ciaries without imposing any cost-sharing
requirements (such as a copayment, coin-
surance, or a deductible), premium, fee,
or other charge, or any portion thereof,
directly or indirectly, on the eligible orga-
nization, the group health plan, or plan
participants or beneficiaries.
(3) If a third party administrator pro-
vides or arranges payments for contra-
ceptive services in accordance with either
paragraph (b)(2)(i) or (ii) of this section,
the costs of providing or arranging such
payments may be reimbursed through
an adjustment to the federally-facilitated
Exchange or State Exchange on the
Federal platform user fees for a participat-
ing issuer pursuant to 45 CFR 156.50(d).
(4) A third party administrator may not
require any documentation other than a
copy of the self-certification from the eli-
gible organization or notification from the
Department of Labor described in para-
graph (b)(1)(ii) of this section.
(5) Where an otherwise eligible organi-
zation does not contract with a third party
administrator and it files a self-certifica-
tion or notice under paragraph (b)(1)(ii)
of this section, the obligations under para-
graph (b)(2) of this section do not apply,
and the otherwise eligible organization is
not required to provide coverage or pay-
ments for contraceptive services to which
it objects. The plan administrator for that
otherwise eligible organization may, if it
and the otherwise eligible organization
choose, arrange for payments for contra-
ceptive services from an issuer or other
entity in accordance with paragraph (b)
(2)(ii) of this section, and such issuer or
other entity may receive reimbursements
in accordance with paragraph (b)(3) of
this section.
(c) Optional accommodation – insured
group health plans. (1) A group health
plan established or maintained by an eli-
gible organization that provides benefits
through one or more group health insur-
ance issuers may voluntarily elect an
optional accommodation under which its
health insurance issuer(s) will provide
payments for all or a subset of contracep-
tive services for one or more plan years.
To invoke the optional accommodation
process:
(i) The eligible organization or its plan
must contract with one or more health
insurance issuers.
(ii) The eligible organization must pro-
vide either a copy of the self-certification
to each issuer it contracts with to provide
coverage in connection with the plan or
a notice to the Secretary of Health and
Human Services that it is an eligible orga-
nization and of its objection as described
in 45 CFR 147.132 to coverage for all or a
subset of contraceptive services.
(A) When a copy of the self-certifica-
tion is provided directly to an issuer, the
issuer has sole responsibility for provid-
ing such coverage in accordance with
§ 2590.715-2713(a)(1)(iv).

Bulletin No. 2023–32 477 August 7, 2023
(B) When a notice is provided to the
Secretary of Health and Human Services,
the notice must include the name of the
eligible organization; a statement that it
objects as described in 45 CFR 147.132
to coverage of some or all contraceptive
services (including an identification of
the subset of contraceptive services to
which coverage the eligible organization
objects, if applicable), but that it would
like to elect the optional accommodation
process; the plan name and type (that
is, whether it is student health insur-
ance coverage within the meaning of 45
CFR 147.145(a) or a church plan within
the meaning of section 414(e) of the
Internal Revenue Code or section 3(33) of
ERISA); and the name and contact infor-
mation for any of the plan’s health insur-
ance issuers. If there is a change in any
of the information required to be included
in the notice, the eligible organization
must provide updated information to the
Secretary of Health and Human Services
for the optional accommodation to remain
in effect. The Department of Health and
Human Services will send a separate noti-
fication to each of the plan’s health insur-
ance issuers informing the issuer that the
Secretary of Health and Human Services
has received a notice under paragraph (c)
(1)(ii) of this section and describing the
obligations of the issuer under this section.
(2) If an issuer receives a copy of the
self-certification from an eligible orga-
nization or the notification from the
Department of Health and Human Services
as described in paragraph (c)(1)(ii) of this
section and does not have an objection as
described in 45 CFR 147.132 to providing
the contraceptive services identified in the
self-certification or the notification from
the Department of Health and Human
Services, the issuer will provide payments
for contraceptive services as follows –
(i) The issuer must expressly exclude
contraceptive coverage from the group
health insurance coverage provided in
connection with the group health plan and
provide separate payments for any con-
traceptive services required to be covered
under § 2590.715-2713(a)(1)(iv) for plan
participants and beneficiaries for so long
as they remain enrolled in the plan.
(ii) With respect to payments for con-
traceptive services, the issuer may not
impose any cost-sharing requirements
(such as a copayment, coinsurance, or
a deductible), premium, fee, or other
charge, or any portion thereof, directly or
indirectly, on the eligible organization, the
group health plan, or plan participants or
beneficiaries. The issuer must segregate
premium revenue collected from the eli-
gible organization from the monies used
to provide payments for contraceptive ser-
vices. The issuer must provide payments
for contraceptive services in a manner
that is consistent with the requirements
under sections 2706, 2709, 2711, 2713,
and 2719 of the PHS Act, as incorporated
into section 715 of ERISA, and section
722 of ERISA. If the group health plan of
the eligible organization provides cover-
age for some but not all of any contracep-
tive services required to be covered under
§ 2590.715-2713(a)(1)(iv), the issuer is
required to provide payments only for
those contraceptive services for which the
group health plan does not provide cov-
erage. However, the issuer may provide
payments for all contraceptive services at
the issuer’s option.
(3) A health insurance issuer may not
require any documentation other than a
copy of the self-certification from the eli-
gible organization or the notification from
the Department of Health and Human
Services described in paragraph (c)(1)(ii)
of this section.
(d) Notice of availability of separate
payments for contraceptive services –
self-insured and insured group health
plans. For each plan year to which the
optional accommodation in paragraph (b)
or (c) of this section is to apply, a third
party administrator required to provide
or arrange payments for contraceptive
services pursuant to paragraph (b) of this
section, and an issuer required to pro-
vide payments for contraceptive services
pursuant to paragraph (c) of this section,
must provide to plan participants and ben-
eficiaries written notice of the availability
of separate payments for contraceptive
services contemporaneous with (to the
extent possible), but separate from, any
application materials distributed in con-
nection with enrollment (or re-enrollment)
in group health coverage that is effective
beginning on the first day of each applica-
ble plan year. The notice must specify that
the eligible organization does not admin-
ister or fund contraceptive benefits, but
that the third party administrator or issuer,
as applicable, provides or arranges sepa-
rate payments for contraceptive services,
and must provide contact information for
questions and complaints. The following
model language, or substantially simi-
lar language, may be used to satisfy the
notice requirement of this paragraph (d):
“Your employer has certified that your
group health plan qualifies for an accom-
modation with respect to the Federal
requirement to cover contraceptive ser-
vices for women, including all Food and
Drug Administration-approved, cleared,
or granted contraceptives, as prescribed
by a health care provider, without cost
sharing. This means that your employer
will not contract, arrange, pay, or refer for
contraceptive coverage. Instead, [name of
third party administrator/health insurance
issuer] will provide separate payments
for contraceptive services that you use,
without cost sharing and at no other cost,
for so long as you are enrolled in your
group health plan. Your employer will not
administer or fund these payments. If you
have any questions about this notice, con-
tact [contact information for third party
administrator/health insurance issuer].”
(e) Individual contraceptive arrange-
ments for eligible individuals. (1) An eli-
gible individual may elect an individual
contraceptive arrangement under which a
willing provider of contraceptive services
furnishes the eligible individual with con-
traceptive services that a group health
plan or health insurance issuer would
have been required to cover pursuant to
§ 2590.715-2713(a)(1)(iv), if not for the
plan’s or issuer’s exempt status under 45
CFR 147.132(a). Under this individual
contraceptive arrangement, the willing
provider of contraceptive services must
furnish contraceptive services (including
items and services that are integral to the
furnishing of the contraceptive services)
to the eligible individual without impos-
ing a fee or charge of any kind, directly
or indirectly, on the eligible individual or
any other entity for the cost of the items
and services or any portion thereof, except
that the provider of contraceptive services
may seek payment from, and be reim-
bursed by, an issuer for the costs of pro-
viding the items and services through an
adjustment to the issuer’s federally-facil-
itated Exchange or State Exchange on the

August 7, 2023 478 Bulletin No. 2023–32
Federal platform user fees pursuant to 45
CFR 156.50(d).
(2) The following language may, but
is not required to, be used by a partic-
ipant or beneficiary (or an authorized
representative of a participant or ben-
eficiary) to confirm to a provider of
contraceptive services that the plan or
coverage is sponsored, provided, or
arranged by an objecting entity and does
not provide coverage for all or a subset
of contraceptive services as generally
required under § 2590.715-2713(a)(1)
(iv): “I certify that I am enrolled (or am
an authorized representative of a person
who is enrolled) in an employer-spon-
sored health plan or health insurance
coverage that does not provide cover-
age for all or a subset of contraceptive
services as generally required under the
Affordable Care Act.” A participant or
beneficiary (or an authorized representa-
tive of a participant or beneficiary) may
use other means to confirm to a provider
of contraceptive services that the plan
or coverage is sponsored, provided, or
arranged by an objecting entity and does
not provide coverage for all or a subset
of contraceptive services.
(f) Reliance – insured group health
plans. (1) If an issuer reasonably and in
good faith relies on a representation by
an eligible organization indicating that
the organization is eligible for the accom-
modation in paragraph (c) of this section,
and the representation is later determined
to be incorrect, the issuer is considered to
comply with any applicable requirement
under § 2590.715-2713(a)(1)(iv) to pro-
vide contraceptive coverage if the issuer
complies with the obligations under this
section applicable to such issuer.
(2) A group health plan is considered
to comply with any applicable require-
ment under § 2590.715-2713(a)(1)(iv) to
provide contraceptive coverage if the plan
complies with its obligations under para-
graph (c) of this section, without regard
to whether the issuer complies with the
obligations under this section applicable
to such issuer.
(g) Definitions. (1) For the purposes of
this section, reference to “contraceptive”
services, benefits, or coverage includes
contraceptive or sterilization items, pro-
cedures, or services, or related patient
education or counseling, to the extent
specified for purposes of § 2590.715-
2713(a)(1)(iv).
(2) For the purposes of this section, the
term “provider of contraceptive services”
means any health care provider (including
a clinician, pharmacy, or other facility)
acting within the scope of that provider’s
license, certification, or authority under
applicable law to provide contraceptive
services (as defined in paragraph (g)(1) of
this section).
(h) Severability. Any provision of this
section held to be invalid or unenforceable
by its terms, or as applied to any person
or circumstance, shall be construed so as
to continue to give maximum effect to the
provision permitted by law, unless such
holding shall be one of utter invalidity or
unenforceability, in which event the pro-
vision shall be severable from this section
and shall not affect the remainder thereof
or the application of the provision to per-
sons not similarly situated or to dissimilar
circumstances.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
For the reasons stated in the pream-
ble, the Department of Health and Human
Services proposes to amend 45 CFR parts
147 and 156 as set forth below:
PART 147 – HEALTH INSURANCE
REFORM REQUIREMENTS FOR
THE GROUP AND INDIVIDUAL
HEALTH INSURANCE MARKETS
7. The authority citation for part 147
continues to read as follows:
Authority: 42 U.S.C. 300gg through
300gg-63, 300gg-91, 300gg-92, and
300gg-111 through 300gg-139, as
amended, and section 3203, Pub. L. 116-
136, 134 Stat. 281.
8. Section 147.130 is amended by
revising paragraphs (a)(1) introductory
text and (a)(1)(iv) to read as follows:
§ 147.130 Coverage of preventive
health services.
(a) * * *
(1) In general. Beginning at the time
described in paragraph (b) of this section,
a group health plan, or a health insurance
issuer offering group or individual health
insurance coverage, must provide cover-
age for and must not impose any cost-shar-
ing requirements (such as a copayment,
coinsurance, or a deductible) for –
* * * * *
(iv) With respect to women, such
additional preventive care and screen-
ings not described in paragraph (a)(1)
(i) of this section as provided for in evi-
dence-informed comprehensive guide-
lines supported by the Health Resources
and Services Administration for purposes
of section 2713(a)(4) of the Public Health
Service Act, subject to §§ 147.131 and
147.132; and
* * * * *
9. Section 147.131 is revised to read as
follows:
§ 147.131 Alternate availability of
certain preventive health services.
(a) Organizations eligible for optional
accommodations and individuals eligible
for individual contraceptive arrange-
ments. (1) An eligible organization is an
organization that meets the criteria of
paragraphs (a)(1)(i) through (iii) of this
section.
(i) The organization is an objecting
entity described in § 147.132(a)(1)(i)
through (iii);
(ii) Notwithstanding its exempt sta-
tus under § 147.132(a), the organization
voluntarily seeks to be considered an eli-
gible organization to invoke the optional
accommodation under paragraph (b) of
this section; and
(iii) The organization self-certifies
in the form and manner specified by the
Secretary of Health and Human Services
or provides notice to the Secretary of
Health and Human Services as described
in paragraph (b) of this section. To qual-
ify as an eligible organization, the orga-
nization must make such self-certification
or notice available for examination upon
request by the first day of the first plan year
to which the accommodation in paragraph
(b) of this section applies. The self-certi-
fication or notice must be executed by a
person authorized to make the certifica-
tion or provide the notice on behalf of the
organization and must be maintained in a
manner consistent with the record reten-
tion requirements under section 107 of
ERISA.

Bulletin No. 2023–32 479 August 7, 2023
(2) An eligible organization may
revoke its use of the accommodation
under paragraph (b) of this section, and its
issuer must provide participants and ben-
eficiaries written notice of the revocation;
the eligible organization’s revocation of
the accommodation will be effective no
sooner than the first day of the first plan
year that begins on or after 30 days after
the date of the revocation.
(3) An eligible individual is an individ-
ual who–
(i) Is a participant or beneficiary
enrolled in a group health plan established
or maintained, or an enrollee in individ-
ual health insurance coverage offered or
arranged, by an objecting entity described
in § 147.132(a) that, to the extent eligible,
has not invoked the optional accommoda-
tion under paragraph (b) of this section;
and
(ii) Confirms (such as by making an
attestation) to a provider of contraceptive
services that agrees to meet the condi-
tions in paragraph (d)(1) of this section
that the individual is enrolled in a group
health plan or group or individual health
insurance coverage that does not provide
coverage for all or a subset of contracep-
tive services as generally required under
§ 147.130(a)(1)(iv).
(b) Optional accommodation - insured
group health plans. (1) A group health
plan established or maintained by an eli-
gible organization that provides benefits
through one or more group health insur-
ance issuers may voluntarily elect an
optional accommodation under which its
health insurance issuer(s) will provide
payments for all or a subset of contracep-
tive services for one or more plan years.
To invoke the optional accommodation
process:
(i) The eligible organization or its plan
must contract with one or more health
insurance issuers.
(ii) The eligible organization must pro-
vide either a copy of the self-certification
to each issuer it contracts with to provide
coverage in connection with the plan or
a notice to the Secretary of Health and
Human Services that it is an eligible orga-
nization and of its objection as described
in § 147.132 to coverage for all or a subset
of contraceptive services.
(A) When a copy of the self-certifica-
tion is provided directly to an issuer, the
issuer has sole responsibility for provid-
ing such coverage in accordance with
§ 147.130(a)(1)(iv).
(B) When a notice is provided to the
Secretary of Health and Human Services,
the notice must include the name of the
eligible organization; a statement that
it objects as described in § 147.132 to
coverage of some or all contraceptive
services (including an identification of
the subset of contraceptive services to
which coverage the eligible organiza-
tion objects, if applicable), but that it
would like to elect the optional accom-
modation process; the plan name and
type (that is, whether it is student health
insurance coverage within the meaning
of § 147.145(a) or a church plan within
the meaning of section 3(33) of ERISA
or section 414(e) of the Internal Revenue
Code); and the name and contact infor-
mation for any of the plan’s health insur-
ance issuers. If there is a change in any of
the information required to be included
in the notice, the eligible organiza-
tion must provide updated information
to the Secretary of Health and Human
Services for the optional accommodation
to remain in effect. The Department of
Health and Human Services will send a
separate notification to each of the plan’s
health insurance issuers informing the
issuer that the Secretary of Health and
Human Services has received a notice
under paragraph (b)(1)(ii) of this sec-
tion and describing the obligations of the
issuer under this section.
(2) If an issuer receives a copy of
the self-certification from an eligible
organization or the notification from
the Department of Health and Human
Services as described in paragraph (b)(1)
(ii) of this section and does not have an
objection as described in § 147.132 to
providing the contraceptive services iden-
tified in the self-certification or the notifi-
cation from the Department of Health and
Human Services, the issuer will provide
payments for contraceptive services as
follows –
(i) The issuer must expressly exclude
contraceptive coverage from the group
health insurance coverage provided in
connection with the group health plan
and provide separate payments for any
contraceptive services required to be cov-
ered under § 147.130(a)(1)(iv) for plan
participants and beneficiaries for so long
as they remain enrolled in the plan.
(ii) With respect to payments for con-
traceptive services, the issuer may not
impose any cost-sharing requirements
(such as a copayment, coinsurance, or
a deductible), premium, fee, or other
charge, or any portion thereof, directly or
indirectly, on the eligible organization, the
group health plan, or plan participants or
beneficiaries. The issuer must segregate
premium revenue collected from the eli-
gible organization from the monies used
to provide payments for contraceptive ser-
vices. The issuer must provide payments
for contraceptive services in a manner
that is consistent with the requirements
under sections 2706, 2709, 2711, 2713,
2719, and 2799A-7 of the PHS Act. If the
group health plan of the eligible organiza-
tion provides coverage for some but not
all of any contraceptive services required
to be covered under § 147.130(a)(1)(iv),
the issuer is required to provide payments
only for those contraceptive services for
which the group health plan does not pro-
vide coverage. However, the issuer may
provide payments for all contraceptive
services at the issuer’s option.
(3) A health insurance issuer may not
require any documentation other than a
copy of the self-certification from the eli-
gible organization or the notification from
the Department of Health and Human
Services described in paragraph (b)(1)(ii)
of this section.
(c) Notice of availability of separate
payments for contraceptive services -
insured group health plans and student
health insurance coverage. For each plan
year to which the optional accommoda-
tion in paragraph (b) of this section is to
apply, an issuer required to provide pay-
ments for contraceptive services pursu-
ant to paragraph (b) of this section must
provide to plan participants and benefi-
ciaries written notice of the availability
of separate payments for contraceptive
services contemporaneous with (to the
extent possible), but separate from, any
application materials distributed in con-
nection with enrollment (or re-enrollment)
in group health coverage that is effective
beginning on the first day of each appli-
cable plan year. The notice must specify
that the eligible organization does not
administer or fund contraceptive benefits,

August 7, 2023 480 Bulletin No. 2023–32
but that the issuer provides separate pay-
ments for contraceptive services, and must
provide contact information for questions
and complaints. The following model
language, or substantially similar lan-
guage, may be used to satisfy the notice
requirement of this paragraph (c): “Your
[employer/institution of higher education]
has certified that your [group health plan/
student health insurance coverage] quali-
fies for an accommodation with respect to
the Federal requirement to cover contra-
ceptive services for women, including all
Food and Drug Administration-approved,
cleared, or granted contraceptives, as pre-
scribed by a health care provider, with-
out cost sharing. This means that your
[employer/institution of higher education]
will not contract, arrange, pay, or refer for
contraceptive coverage. Instead, [name
of health insurance issuer] will provide
separate payments for contraceptive ser-
vices that you use, without cost sharing
and at no other cost, for so long as you
are enrolled in your [group health plan/
student health insurance coverage]. Your
[employer/institution of higher education]
will not administer or fund these pay-
ments. If you have any questions about
this notice, contact [contact information
for health insurance issuer].”
(d) Individual contraceptive arrange-
ments for eligible individuals. (1) An eli-
gible individual may elect an individual
contraceptive arrangement under which a
willing provider of contraceptive services
furnishes the eligible individual with con-
traceptive services that a group health
plan or health insurance issuer would
have been required to cover pursuant to
§ 147.130(a)(1)(iv), if not for the plan’s or
issuer’s exempt status under § 147.132(a).
Under this individual contraceptive
arrangement, the willing provider of
contraceptive services must furnish con-
traceptive services (including items and
services that are integral to the furnishing
of the contraceptive services) to the eligi-
ble individual without imposing a fee or
charge of any kind, directly or indirectly,
on the eligible individual or any other
entity for the cost of the items and services
or any portion thereof, except that the pro-
vider of contraceptive services may seek
payment from, and be reimbursed by, an
issuer for the costs of providing the items
and services through an adjustment to the
issuer’s federally-facilitated Exchange or
State Exchange on the Federal platform
user fees pursuant to § 156.50(d) of this
subchapter.
(2) The following language may, but is
not required to, be used by a participant,
beneficiary, or enrollee (or an authorized
representative of a participant, benefi-
ciary, or enrollee) to confirm to a provider
of contraceptive services that the plan
or coverage is sponsored, provided, or
arranged by an objecting entity and does
not provide coverage for all or a subset
of contraceptive services as generally
required under § 147.130(a)(1)(iv): “I cer-
tify that I am enrolled (or am an autho-
rized representative of a person who is
enrolled) in an employer-sponsored health
plan or individual health insurance cov-
erage that does not provide coverage for
all or a subset of contraceptive services as
generally required under the Affordable
Care Act.” A participant, beneficiary, or
enrollee (or an authorized representative
of a participant, beneficiary, or enrollee)
may use other means to confirm to a pro-
vider of contraceptive services that the
plan or coverage is sponsored, provided,
or arranged by an objecting entity and
does not provide coverage for all or a sub-
set of contraceptive services.
(e) Reliance. (1) If an issuer reasonably
and in good faith relies on a representation
by an eligible organization indicating that
the organization is eligible for the accom-
modation in paragraph (b) of this section,
and the representation is later determined
to be incorrect, the issuer is considered to
comply with any applicable requirement
under § 147.130(a)(1)(iv) to provide con-
traceptive coverage if the issuer complies
with the obligations under this section
applicable to such issuer.
(2) A group health plan is considered to
comply with any applicable requirement
under § 147.130(a)(1)(iv) to provide con-
traceptive coverage if the plan complies
with its obligations under paragraph (b) of
this section, without regard to whether the
issuer complies with the obligations under
this section applicable to such issuer.
(f) Rule of construction. In the case of
student health insurance coverage, this
section is applicable in the same manner
as it is applicable to group health insur-
ance coverage provided in connection
with a group health plan established or
maintained by a plan sponsor that is an
employer, and references to “plan par-
ticipants and beneficiaries” will be inter-
preted as references to student enrollees
and their covered dependents.
(g) Definitions. (1) For the purposes of
this section, reference to “contraceptive”
services, benefits, or coverage includes
contraceptive or sterilization items, proce-
dures, or services, or related patient educa-
tion or counseling, to the extent specified
for purposes of § 147.130(a)(1)(iv).
(2) For the purposes of this section, the
term “provider of contraceptive services”
means any health care provider (including
a clinician, pharmacy, or other facility)
acting within the scope of that provider’s
license, certification, or authority under
applicable law to provide contraceptive
services (as defined in paragraph (g)(1) of
this section).
(h) Severability. Any provision of this
section held to be invalid or unenforceable
by its terms, or as applied to any person
or circumstance, shall be construed so as
to continue to give maximum effect to the
provision permitted by law, unless such
holding shall be one of utter invalidity or
unenforceability, in which event the pro-
vision shall be severable from this section
and shall not affect the remainder thereof
or the application of the provision to per-
sons not similarly situated or to dissimilar
circumstances.
10. Section 147.132 is amended by
revising paragraphs (a)(1)(i) introductory
text, (a)(1)(iv), and (b) to read as follows:
§ 147.132 Religious exemptions in
connection with coverage of certain
preventive health services.
(a) * * *
(1) * * *
(i) A group health plan and health
insurance coverage provided in con-
nection with a group health plan, to the
extent the non-governmental sponsor of
the plan or coverage objects as specified
in paragraph (a)(2) of this section. Such
non-governmental plan sponsors include
the following entities -
* * * * *
(iv) A health insurance issuer offer-
ing group or individual health insurance
coverage to the extent the issuer objects
as specified in paragraph (a)(2) of this

Bulletin No. 2023–32 481 August 7, 2023
section. Where a health insurance issuer
providing group health insurance coverage
is exempt under this paragraph (a)(1)(iv),
the group health plan established or main-
tained by the plan sponsor with which the
health insurance issuer contracts remains
subject to any requirement to provide
coverage for contraceptive services under
guidelines issued under § 147.130(a)(1)
(iv) unless it is also exempt from that
requirement. Notwithstanding §§ 146.150
of this subchapter and 147.104, a health
insurance issuer may not offer coverage
that excludes some or all contraceptive
services to any entity or individual that is
not an objecting entity or objecting indi-
vidual under paragraph (a) or (b) of this
section, respectively.
* * * * *
(b) Objecting individuals. (1)
Guidelines issued under § 147.130(a)(1)
(iv) by the Health Resources and Services
Administration must not provide for or
support the requirement of coverage or
payments for contraceptive services with
respect to an individual who objects to
coverage or payments for some or all
contraceptive services based on sincerely
held religious beliefs. Thus, the following
entities will be exempt from any Health
Resources and Services Administration
guidelines requirements that relate to the
provision of contraceptive services with
respect to such an individual:
(i) A health insurance issuer offering
group or individual health insurance cov-
erage willing to provide the plan sponsor
(with respect to the individual) or individ-
ual, as applicable, with a separate policy,
certificate, or contract of insurance; or
(ii) A group health plan willing to pro-
vide the individual a separate group health
plan or benefit package option.
(2) For purposes of this paragraph (b),
if an individual objects to some but not
all contraceptive services and the issuer,
to the extent permitted by applicable State
law, and the plan sponsor, as applicable,
are willing to provide the plan sponsor or
individual, as applicable, with a separate
policy, certificate or contract of insurance
or a separate group health plan or bene-
fit package option that omits all contra-
ceptives, and the individual agrees, then
the exemption applies as if the individual
objects to all contraceptive services.
* * * * *
§ 147.133 [Removed]
11. Section 147.133 is removed.
PART 156 - HEALTH INSURANCE
ISSUER STANDARDS UNDER
THE AFFORDABLE CARE
ACT, INCLUDING STANDARDS
RELATED TO EXCHANGES
12. The authority citation for part 156
continues to read as follows:
Authority: 42 U.S.C. 18021-18024,
18031-18032, 18041-18042, 18044,
18054, 18061, 18063, 18071, 18082, and
26 U.S.C. 36B.
13. Section 156.50 is amended in
paragraph (a) by adding the definition of
“provider of contraceptive services” in
alphabetical order and revising paragraph
(d) to read as follows:
§ 156.50 Financial support.
(a) * * *
Provider of contraceptive services
has the meaning given to the term in
§ 147.131(g)(2) of this subchapter.
* * * * *
(d) Adjustment of Exchange user fees.
(1) A participating issuer offering a plan
through a federally-facilitated Exchange
or State Exchange on the Federal platform
may qualify for an adjustment of the fed-
erally-facilitated Exchange user fee spec-
ified in paragraph (c)(1) of this section or
the State Exchange on the Federal plat-
form user fee specified in paragraph (c)
(2) of this section, to the extent that the
participating issuer -
(i) Made payments for contracep-
tive services on behalf of a third party
administrator pursuant to 26 CFR
54.9815-2713A(b)(2)(ii) or 29 CFR
2590.715-2713A(b)(2)(ii);
(ii) Seeks an adjustment in the fed-
erally-facilitated Exchange user fee or
State Exchange on the Federal platform
user fee with respect to a third party
administrator that, following receipt of a
copy of the self-certification referenced
in 26 CFR 54.9815-2713A(a)(1)(iii)
or 29 CFR 2590.715-2713A(a)(1)(iii),
made or arranged for payments for con-
traceptive services pursuant to 26 CFR
54.9815-2713A(b)(2)(i) or (ii) or 29 CFR
2590.715-2713A(b)(2)(i) or (ii); or
(iii) Seeks an adjustment in the feder-
ally-facilitated Exchange user fee or State
Exchange on the Federal platform user
fee with respect to a provider of contra-
ceptive services that, following receipt
of a representation by or on behalf of an
individual that the individual is an eligible
individual (as defined in 26 CFR 54.9815-
2713A(a)(3), 29 CFR 2590.715-2713A(a)
(3), or § 147.131(a)(3) of this subchap-
ter), furnished contraceptive services to
the eligible individual, without imposing
a fee or charge of any kind, directly or
indirectly, on the eligible individual or
any other entity for the cost of the items
and services or any portion thereof pursu-
ant to 26 CFR 54.9815-2713A(e), 29 CFR
2590.715-2713A(e), or § 147.131(d) of
this subchapter.
(2) For a participating issuer described
in paragraph (d)(1) of this section to
receive an adjustment of a user fee under
this section -
(i) The participating issuer must sub-
mit to HHS, in the manner and timeframe
specified by HHS, in the year immediately
following the calendar year in which the
contraceptive services for which payments
pursuant to 26 CFR 54.9815-2713A(b)(2)
or (e), 29 CFR 2590.715-2713A(b)(2) or
(e), or § 147.131(d) of this subchapter
were provided -
(A) Identifying information for
the participating issuer and each third
party administrator that received a copy
of the self-certification referenced in
26 CFR 54.9815-2713A(a)(1)(iii) or
29 CFR 2590.715-2713A(a)(1)(iii),
whether or not the participating issuer
was the entity that made the payments
for contraceptive services, and each
provider of contraceptive services that
furnished contraceptive services in com-
pliance with 26 CFR 54.9815-2713A(e),
29 CFR 2590.715-2713A(e), or 45 CFR
147.131(d) to an eligible individual (as
defined in 26 CFR 54.9815-2713A(a)
(3), 29 CFR 2590.715-2713A(a)(3), or
§ 147.131(a)(3) of this subchapter), with
respect to which the participating issuer
seeks an adjustment of the user fee speci-
fied in paragraph (c)(1) or (2) of this sec-
tion, as applicable;
(B) Identifying information for each
self-insured group health plan with respect
to which a copy of the self-certification
referenced in 26 CFR 54.9815-2713A(a)

August 7, 2023 482 Bulletin No. 2023–32
(1)(iii) or 29 CFR 2590.715-2713A(a)(1)
(iii) was received by a third party admin-
istrator, and with respect to which the par-
ticipating issuer seeks an adjustment of
the user fee specified in paragraph (c)(1)
or (2) of this section, as applicable;
(C) For each such self-insured group
health plan, the total dollar amount of the
payments that were made pursuant to 26
CFR 54.9815-2713A(b)(2) or 29 CFR
2590.715-2713A(b)(2) for contraceptive
services that were provided during the
applicable calendar year. If such payments
were made by the participating issuer
directly as described in paragraph (d)(1)
(i) of this section, the total dollar amount
should reflect the amount of the payments
made by the participating issuer; if the
third party administrator made or arranged
for such payments, as described in para-
graph (d)(1)(ii) of this section, the total
dollar amount should reflect the amount
reported to the participating issuer by the
third party administrator;
(D) Documentation, with respect to
each provider of contraceptive services,
demonstrating that the participating issuer
and the provider of contraceptive ser-
vices have a signed written agreement
providing that the participating issuer
will reimburse (or has reimbursed) the
provider of contraceptive services for
the costs of furnishing contraceptive ser-
vices during the applicable calendar year
in compliance with 26 CFR 54.9815-
2713A(e), 29 CFR 2590.715-2713A(e), or
§ 147.131(d) of this subchapter, and will
seek an adjustment of the user fee specified
in paragraph (c)(1) or (2) of this section as
a result of the agreement to reimburse the
provider’s costs under 26 CFR 54.9815-
2713A(e), 29 CFR 2590.715-2713A(e), or
§ 147.131(d) of this subchapter; and
(E) For each provider of contraceptive
services as specified in paragraph (d)(2)(i)
(A) of this section, the total dollar amount
of the costs of furnishing contraceptive ser-
vices during the applicable calendar year
pursuant to 26 CFR 54.9815-2713A(e), 29
CFR 2590.715-2713A(e), or § 147.131(d)
of this subchapter.
(ii) Each third party administrator that
intends to seek an adjustment on behalf
of a participating issuer of the federal-
ly-facilitated Exchange user fee or the
State-based Exchange on the Federal
platform user fee based on payments for
contraceptive services, must submit to
HHS a notification of such intent, in a
manner specified by HHS, by the 60
th

calendar day following the date on which
the third party administrator receives the
applicable copy of the self-certification
referenced in 26 CFR 54.9815-2713A(a)
(1)(iii) or 29 CFR 2590.715-2713A(a)(1)
(iii).
(iii) Each third party administrator
identified in paragraph (d)(2)(i)(A) of
this section must submit to HHS, in the
manner and timeframe specified by HHS,
in the year following the calendar year
in which the contraceptive services for
which payments were made pursuant to
26 CFR 54.9815-2713A(b)(2) or 29 CFR
2590.715-2713A(b)(2) were provided -
(A) Identifying information for the
third party administrator and the partici-
pating issuer;
(B) Identifying information for each
self-insured group health plan with respect
to which a copy of the self-certification
referenced in 26 CFR 54.9815-2713A(a)
(1)(iii) or 29 CFR 2590.715-2713A(a)
(1)(iii) was received by the third party
administrator and with respect to which
the participating issuer seeks an adjust-
ment of the user fee specified in paragraph
(c)(1) or (2) of this section, as applicable;
(C) The total number of participants
and beneficiaries in each such self-insured
group health plan during the applicable
calendar year; and
(D) For each such self-insured group
health plan with respect to which the
third party administrator made payments
pursuant to 26 CFR 54.9815-2713A(b)
(2) or 29 CFR 2590.715-2713A(b)(2)
for contraceptive services, the total dol-
lar amount of such payments that were
provided during the applicable calendar
year. If such payments were made by the
participating issuer directly as described
in paragraph (d)(1)(i) of this section, the
total dollar amount should reflect the
amount reported to the third party admin-
istrator by the participating issuer; if the
third party administrator made or arranged
for such payments, as described in para-
graph (d)(1)(ii) of this section, the total
dollar amount should reflect the amount
of the payments made by or on behalf of
the third party administrator.
(E) An attestation that the payments
for contraceptive services were made
in compliance with 26 CFR 54.9815-
2713A(b)(2) or 29 CFR 2590.715-
2713A(b)(2).
(3) If the requirements set forth in
paragraph (d)(2) of this section are met,
the participating issuer will be provided a
reduction in its obligation to pay the user
fee specified in paragraph (c)(1) or (2) of
this section, as applicable, equal in value
to the sum of the following:
(i) The total dollar amount of the pay-
ments for contraceptive services submitted
by the applicable third party administra-
tors, as described in paragraph (d)(2)(iii)
(D) of this section;
(ii) The total dollar amount of the
costs of furnishing contraceptive services
submitted by the participating issuer on
behalf of applicable providers of contra-
ceptive services, described in paragraph
(d)(2)(i)(E) of this section; and
(iii) An allowance for administrative
costs and margin. The allowance will be
no less than 10 percent of the total dollar
amount of the payments for contraceptive
services and the costs of furnishing con-
traceptive services specified in paragraphs
(d)(3)(i) and (d)(3)(ii) of this section.
Unless a new allowance is specified for
an applicable year in the HHS notice of
benefit and payment parameters or other
rulemaking, HHS will maintain the allow-
ance that was last specified in rulemaking.
(4) If the amount of the adjustment
under paragraph (d)(3) of this section is
greater than the amount of the partici-
pating issuer’s obligation to pay the user
fee specified in paragraph (c)(1) or (2) of
this section, as applicable, in a particular
month, the participating issuer will be pro-
vided a credit in succeeding months in the
amount of the excess.
(5) The participating issuer may reim-
burse each third party administrator and
provider of contraceptive services for
payments for contraceptive services sub-
mitted by the third party administrator or
the provider of contraceptive services’
costs of furnishing contraceptive ser-
vices, as described in paragraphs (d)(2)
(iii)(D) and (d)(2)(i)(E) of this section,
as soon as the services are delivered.
The participating issuer must pay, within
60 days of receipt of any adjustment of
a user fee under this section, each third
party administrator and provider of con-
traceptive services with respect to which

Bulletin No. 2023–32 483 August 7, 2023
it received any portion of such adjust-
ment an amount that is no less than the
portion of the adjustment attributable to
the total dollar amount of the payments
for services submitted by the third party
administrator or the provider of con-
traceptive services’ costs of furnishing
contraceptive services, as described in
paragraphs (d)(2)(iii)(D) and (d)(2)(i)
(E) of this section. No payment to a third
administrator or provider of contracep-
tive services is required with respect to
the allowance for administrative costs
and margin described in paragraph (d)(3)
(iii) of this section. This paragraph does
not apply if the participating issuer made
the payments for contraceptive services
on behalf of the third party administrator,
as described in paragraph (d)(1)(i) of this
section, or is in the same issuer group as
the third party administrator.
(6) A participating issuer that receives
an adjustment in the user fee specified
in paragraph (c)(1) or (2) of this section
for a particular calendar year must main-
tain for 10 years following that year, and
make available upon request to HHS,
the Office of the Inspector General, the
Comptroller General, and their desig-
nees, documentation demonstrating that
it timely paid each third party adminis-
trator and provider with respect to which
it received any such adjustment any
amount required to be paid to the third
party administrator or provider under
paragraph (d)(5) of this section.
(7) A third party administrator of a plan
with respect to which an adjustment of the
user fee specified in paragraph (c)(1) or
(2) of this section is received under this
section for a particular calendar year must
maintain for 10 years following that year,
and make available upon request to HHS,
the Office of the Inspector General, the
Comptroller General, and their designees,
all of the following documentation:
(i) A copy of the self-certification ref-
erenced in 26 CFR 54.9815-2713A(a)(1)
(iii) or 29 CFR 2590.715-2713A(a)(1)(iii)
for each self-insured plan with respect to
which an adjustment is received.
(ii) Documentation demonstrating
that the payments for contraceptive ser-
vices were made in compliance with 26
CFR 54.9815-2713A(b)(2) or 29 CFR
2590.715-2713A(b)(2).
(iii) Documentation supporting the
total dollar amount of the payments for
contraceptive services submitted by the
third party administrator, as described in
paragraph (d)(2)(iii)(D) of this section.
(8) A provider of contraceptive ser-
vices that has furnished contraceptive
services in compliance with the individual
contraceptive arrangement, with respect
to which a participating issuer received
an adjustment of the user fee specified
in paragraph (c)(1) or (2) of this section
for a particular calendar year must, as a
condition of participating in the individ-
ual contraceptive arrangement, maintain
for 10 years following the contraceptive
service being provided, and make avail-
able upon request to HHS, the Office of
the Inspector General, the Comptroller
General, and their designees, all of the
following documentation:
(i) Documentation demonstrating that
the provider of contraceptive services fur-
nished contraceptive services in compli-
ance with 26 CFR 54.9815-2713A(e), 29
CFR 2590.715-2713A(e), or § 147.131(d)
of this subchapter.
(ii) Documentation supporting the total
dollar amount of the costs of furnishing
contraceptive services submitted by the
provider of contraceptive services under
paragraph (d)(2)(i)(E) of this section.
(9) If a provider of contraceptive ser-
vices relies reasonably and in good faith
on a representation by or on behalf of an
individual that the individual is an eligible
individual (as defined in 26 CFR 54.9815-
2713A(a)(3), 29 CFR 2590.715-2713A(a)
(3), or § 147.131(a)(3) of this subchapter),
and the representation is later determined
to be incorrect, the provider of contracep-
tive services is considered to comply with
the applicable requirements under para-
graphs (d)(1)(iii), (d)(2)(i)(A), and (d)(8)
(i) of this section.
(10) If a participating issuer relies
reasonably and in good faith on a rep-
resentation by a provider of contra-
ceptive services that the provider of
contraceptive services furnished contra-
ceptive services to an eligible individual
(as defined in 26 CFR 54.9815-2713A(a)
(3), 29 CFR 2590.715-2713A(a)(3), or
§ 147.131(a)(3) of this subchapter), with-
out imposing a fee or charge of any kind,
directly or indirectly, on the eligible indi-
vidual or any other entity for the cost of the
items and services or any portion thereof,
and the representation that the provider of
contraceptive services received from or on
behalf of the individual is later determined
to be incorrect, the participating issuer is
considered to comply with the applicable
requirements under paragraphs (d)(1)(iii)
and (d)(2)(i)(A) of this section.
(11) If a participating issuer relies rea-
sonably and in good faith on a representa-
tion by a provider of contraceptive services
that the provider of contraceptive services
furnished contraceptive services to an
eligible individual (as defined in 26 CFR
54.9815-2713A(a)(3), 29 CFR 2590.715-
2713A(a)(3), or § 147.131(a)(3) of this
subchapter), without imposing a fee or
charge of any kind, directly or indirectly,
on the eligible individual or any other
entity for the cost of the items and services
or any portion thereof, and the represen-
tation by the provider of contraceptive
services is determined to be incorrect after
the participating issuer has paid the pro-
vider of contraceptive services the amount
described in (d)(2)(i)(E) of this section,
the participating issuer is considered to
comply with the applicable requirements
under paragraphs (d)(1)(iii) and (d)(2)(i)
(A) of this section.
Melanie R. Krause
Acting Deputy Commissioner for
Services and Enforcement,
Internal Revenue Service.
Lisa M. Gomez
Assistant Secretary, Employee Benefits
Security Administration,
Department of Labor.
Xavier Becerra
Secretary,
Department of Health and Human
Services.
(Filed by the Office of the Federal Register January
30, 2023, 11:15 a.m., and published in the issue of
the Federal Register for February 2, 2023, 88 FR
7236)

Bulletin No. 2023–32 i August 7, 2023
Definition of Terms
Revenue rulings and revenue procedures
(hereinafter referred to as “rulings”) that
have an effect on previous rulings use the
following defined terms to describe the
effect:
Amplified describes a situation where
no change is being made in a prior pub-
lished position, but the prior position is
being extended to apply to a variation of
the fact situation set forth therein. Thus, if
an earlier ruling held that a principle ap-
plied to A, and the new ruling holds that
the same principle also applies to B, the
earlier ruling is amplified. (Compare with
modified, below).
Clarified is used in those instances
where the language in a prior ruling is be-
ing made clear because the language has
caused, or may cause, some confusion. It
is not used where a position in a prior rul-
ing is being changed.
Distinguished describes a situation
where a ruling mentions a previously pub-
lished ruling and points out an essential
difference between them.
Modified is used where the substance
of a previously published position is being
changed. Thus, if a prior ruling held that a
principle applied to A but not to B, and the
new ruling holds that it applies to both A
and B, the prior ruling is modified because
it corrects a published position. (Compare
with amplified and clarified, above).
Obsoleted describes a previously pub-
lished ruling that is not considered deter-
minative with respect to future transactions.
This term is most commonly used in a ruling
that lists previously published rulings that
are obsoleted because of changes in laws or
regulations. A ruling may also be obsoleted
because the substance has been included in
regulations subsequently adopted.
Revoked describes situations where the
position in the previously published ruling
is not correct and the correct position is
being stated in a new ruling.
Superseded describes a situation where
the new ruling does nothing more than
restate the substance and situation of a
previously published ruling (or rulings).
Thus, the term is used to republish under
the 1986 Code and regulations the same
position published under the 1939 Code
and regulations. The term is also used
when it is desired to republish in a single
ruling a series of situations, names, etc.,
that were previously published over a
period of time in separate rulings. If the
new ruling does more than restate the sub-
stance of a prior ruling, a combination of
terms is used. For example, modified and
superseded describes a situation where the
substance of a previously published ruling
is being changed in part and is continued
without change in part and it is desired to
restate the valid portion of the previous-
ly published ruling in a new ruling that is
self contained. In this case, the previously
published ruling is first modified and then,
as modified, is superseded.
Supplemented is used in situations in
which a list, such as a list of the names of
countries, is published in a ruling and that
list is expanded by adding further names
in subsequent rulings. After the original
ruling has been supplemented several
times, a new ruling may be published that
includes the list in the original ruling and
the additions, and supersedes all prior rul-
ings in the series.
Suspended is used in rare situations
to show that the previous published rul-
ings will not be applied pending some
future action such as the issuance of new
or amended regulations, the outcome of
cases in litigation, or the outcome of a
Service study.
Abbreviations
The following abbreviations in current
use and formerly used will appear in
material published in the Bulletin.
A—Individual.
Acq.—Acquiescence.
B—Individual.
BE—Beneficiary.
BK—Bank.
B.T.A.—Board of Tax Appeals.
C—Individual.
C.B.—Cumulative Bulletin.
CFR—Code of Federal Regulations.
CI—City.
COOP—Cooperative.
Ct.D.—Court Decision.
CY—County.
D—Decedent.
DC—Dummy Corporation.
DE—Donee.
Del. Order—Delegation Order.
DISC—Domestic International Sales Corporation.
DR—Donor.
E—Estate.
EE—Employee.
E.O.—Executive Order.
ER—Employer.
ERISA—Employee Retirement Income Security Act.
EX—Executor.
F—Fiduciary.
FC—Foreign Country.
FICA—Federal Insurance Contributions Act.
FISC—Foreign International Sales Company.
FPH—Foreign Personal Holding Company.
F.R.—Federal Register.
FUTA—Federal Unemployment Tax Act.
FX—Foreign corporation.
G.C.M.—Chief Counsel’s Memorandum.
GE—Grantee.
GP—General Partner.
GR—Grantor.
IC—Insurance Company.
I.R.B.—Internal Revenue Bulletin.
LE—Lessee.
LP—Limited Partner.
LR—Lessor.
M—Minor.
Nonacq.—Nonacquiescence.
O—Organization.
P—Parent Corporation.
PHC—Personal Holding Company.
PO—Possession of the U.S.
PR—Partner.
PRS—Partnership.
PTE—Prohibited Transaction Exemption.
Pub. L.—Public Law.
REIT—Real Estate Investment Trust.
Rev. Proc.—Revenue Procedure.
Rev. Rul.—Revenue Ruling.
S—Subsidiary.
S.P.R.—Statement of Procedural Rules.
Stat.—Statutes at Large.
T—Target Corporation.
T.C.—Tax Court.
T.D.—Treasury Decision.
TFE—Transferee.
TFR—Transferor.
T.I.R.—Technical Information Release.
TP—Taxpayer.
TR—Trust.
TT—Trustee.
U.S.C.—United States Code.
X—Corporation.
Y—Corporation.
Z—Corporation.

August 7, 2023 ii Bulletin No. 2023–32
Numerical Finding List
1
Bulletin 2023–32
Announcements:
2023-18, 2023-30 I.R.B. 366
2023-19, 2023-30 I.R.B. 367
2023-20, 2023-30 I.R.B. 368
2023-17, 2023-31 I.R.B. 412
2023-21, 2023-31 I.R.B. 413
2023-22, 2023-32 I.R.B. 429
Notices:
2023-29, 2023-29 I.R.B. 1
2023-45, 2023-29 I.R.B. 317
2023-47, 2023-29 I.R.B. 318
2023-37, 2023-30 I.R.B. 359
2023-50, 2023-30 I.R.B. 361
2023-51, 2023-30 I.R.B. 362
2023-54, 2023-31 I.R.B. 382
2023-53, 2023-32 I.R.B. 424
2023-55, 2023-32 I.R.B. 427
Proposed Regulations:
REG-124123-22, 2023-30 I.R.B. 369
REG-124930-21, 2023-31 I.R.B. 431
Revenue Procedures:
2023-31, 2023-25 I.R.B. 386
Revenue Rulings:
2023-13, 2023-32 I.R.B. 413
Treasury Decisions:
9976, 2023-30 I.R.B. 354
9977, 2023-31 I.R.B. 375
9978, 2023-32 I.R.B. 415
1
A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2023–27 through 2023–52 is in Internal Revenue Bulletin
2023–52, dated December 27, 2023.

Bulletin No. 2023–32 iii August 7, 2023
Finding List of Current Actions on
Previously Published Items
1
Bulletin 2023–32
1
A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2023–27 through 2023–52 is in Internal Revenue Bulletin
2023–52, dated December 27, 2023.

Internal Revenue Service
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