Notice & Comment

Agency Spotlight: HHS Regulations Implementing the Affordable Care Act, by Kevin J. Schmitt

While much of the recent media attention focused on states establishing health insurance exchanges under the Affordable Care Act (ACA), the federal government is playing a significant role implementing key parts of the law. With only sixteen states plus the District of Columbia set to manage their own exchanges and seven more opting for a partnership approach, the federal government will assume full responsibility for running the remainder of the state health insurance exchange marketplaces nationwide. The Department of Health and Human Services (HHS) also made “expand[ing] health insurance coverage and ensur[ing] that the American people can rely on their existing coverage when they need it most” a top regulatory priority for Fiscal Year 2013. HHS is seeking comments on a number of proposed rules to achieve this goal:

  • Coverage for Preventive Services: Issued in conjunction with the Departments of Treasury and Labor, the proposed rule addresses requirements under section 2713 of the ACA requiring insurance coverage of preventative health measures, including contraceptives. The proposal is part of an ongoing effort by these departments to ensure insurance coverage for these services while protecting organizations objecting to contraceptives on religious grounds. The proposed rule contemplates two key changes: (1) amend the criteria for the religious exemption to ensure that an employer falling under this exemption does not face disqualification “because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths;” and (2) “establish accommodations for health coverage established or maintained by eligible organizations . . . with religious objections to contraceptive coverage.”  The comment period closes on April 8, 2013.  Visit for instructions on how to submit comments.
  • Small Business Health Options Plan: The ACA requires states running their own exchanges to establish a Small Business Health Options Plan (SHOP) to help small businesses provide insurance for their employees. The proposed rule would make a variety of changes to existing regulations governing the management of these SHOPs. First, it would align various aspects of the SHOPs with provisions of the Health Insurance Portability and Accountability Act. Second, the rule proposes a transitional plan for establishing the SHOPs to grant businesses more preparation time while allowing employees access to small group benefits.  The comment period closes on April 1, 2013. Visit for instructions on how to submit comments.   
  • Essential Coverage: Section 5000A of the Internal Revenue Code, which requires individuals to maintain minimum essential coverage, is one of the most controversial aspects of the ACA. Certain classes of individuals are exempted from this requirement, and the health insurance exchanges are directed to issue certifications of exemption for qualified individuals. The proposed rule would establish the procedures by which the exchanges will determine eligibility for the exemption.  Interested parties are encouraged to act soon, as comments are due March 18, 2013. Visit for instructions on how to submit comments.

Kevin J. Schmitt is a third-year law student at UC Hastings College of the Law.  He is currently a Senior Articles Editor for the Hastings Law Journal.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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