August 27, 2014
Area(s) of Interest: Health Care Reform
Last week, the Obama administration proposed a compromise to provide contraceptive coverage under the Affordable Care Act (ACA) to employees of whose employers object on religious grounds to providing contraceptives to their employees. The administration is hoping to quell the controversy around the ACA contractive coverage that has yielded dozens of lawsuits, while ensuring that all women are able to get coverage of recommended preventive services without cost sharing, as intended under the health care law.
“Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work,” said U.S. Health and Human Services (HHS) Secretary Sylvia Burwell in a press release. “Today’s announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by non-profit organizations and closely held for-profit companies.”
The new interim final regulations, which take effect immediately, would provide non-profit religious employers – such as faith-affiliated charities, colleges and hospitals – with an additional pathway to notify HHS of their religious objections to providing birth control coverage. The U.S. government will then work with insurers to provide and pay for contraceptive coverage to women seeking it.
Currently, the ACA only exempts religious employers and requires such employers to fill out a form notifying the insurance companies of their objections.The administration has also proposed and is seeking comments on extending the same exemption to certain closely held for-profit entities, like Hobby Lobby.
In the Hobby Lobby case (Burwell v. Hobby Lobby) the Supreme Court ruled that closely held for-profit corporations to be exempt from the ACA if the law would violate the religious beliefs of the company's owners. The Court found that corporations were included in the definition of "persons" under the Religious Freedom Restoration Act of 1993 and the contraception coverage mandate under the ACA violated the religious rights of the corporation.
Just days after the Hobby Lobby decision, the Supreme Court also issued a temporary injunction Wheaton College v. Sebelius that barred the government from requiring the religious college to fill out a form to facilitate contraceptive coverage for employees and students. Wheaton argued that filling out such a form would make it complicit in the coverage.
Under the proposed rule, the administration is seeking comments on how it might extend the accommodation available to non-profit religious organizations to closely held for-profit entities. The proposal seeks comments from interested stakeholders on how to define a closely held for-profit company and how to implement the policy. Interested parties have 60 days to submit comments.
For more information, see the Centers for Medicare and Medicaid Services' fact sheet on these new rules here.