Responsibility for mandatory contraception coverage may be thrown onto issuers as HHS, the Labor Department and the Internal Revenue Service propose rules that allow practically any religious employer a way out.
The proposed rules
issued Feb. 1 by the three agencies seek to “enhance coverage of important preventive services for women without cost-sharing while accommodating the religious objections to contraceptive coverage of eligible organizations.”
That has been an issue since the Affordable Care Act required the coverage, sparking lawsuits from employers such as Notre Dame University
and Hobby Lobby
, which claimed any involvement with contraception betrayed their religious liberties.
The new proposed rules would “amend the criteria for the religious employer exemption” from the contraceptive mandate in a way that would seem to exempt most religious organizations.
The rules sharply reduce eligibility requirements for an exempt organization. Previously, the exemption was judged by a four-prong test that the organization: “(1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization…”
The three agencies now propose “for purposes of these proposed rules only” to judge them this way:
· The organization opposes providing coverage for some or all of the contraceptive services required to be covered under section 2713 of the Public Health Service Act on account of religious objections.
· The organization is organized and operates as a nonprofit entity.
· The organization holds itself out as a religious organization.
· The organization self-certifies that it satisfies the first three criteria, as described later in this section.
The “self-certification” would not be submitted to the feds but maintained and presented when needed to avoid contraception coverage. For multiple-employer group health plans, exemptions would be dealt with “on an employer-by-employer basis.”
So who would pay for the contraception for women in exempt organizations? The insurance issuers. Issuers “would assume sole responsibility, independent of the eligible organization and its plan, for providing contraceptive coverage without cost-sharing, premium, fee or other charge to plan participants and beneficiaries.”
The religious employer would just have to show the issuer its self-certification, and that issuer would have to remove contraception from the group plan and provide it “under individual policies, certificates or contracts of insurance (hereinafter referred to as individual health insurance policies) for plan participants and beneficiaries without cost-sharing, premium, fee or other charge.” The issuer also would provide notification to beneficiaries that if they want free contraception, the issuer provides it via the new plan.
These contraception plan years would start at the same time as the group plan years from which they were stripped, “to prevent a delay or gap in contraceptive coverage.”
If you wonder why insurance companies would not rebel at this, first, the three agencies offer them a break on federally facilitated exchange (FFE) user fees
to “offset the costs.” The proposed rules include a number of suggested ways to make sure they get enough of a break to make it worth their while. There’s also talk of reimbursing “administrative costs” in the final rules.
Second, the agencies assure them the beneficiaries “would experience lower costs from improvements in women’s health and fewer childbirths,” thereby saving money in the group plans.
In any event, we suspect the Obama administration already has had some long talks with insurers’ groups before issuing these rules.
The administration first proposed the idea of making someone else pay the freight for religious organizations’ contraception last year, which suggested “third-party administrators
” would take responsibility. HHS promised a final rule
on the issue by August 2013.