HHS mandate for religious groups finalized with few changes

Washington D.C., Jun 28, 2013 / 11:10 am

The Obama administration announced on June 28 that it has finalized its regulations on the federal contraception mandate as it applies to religious employers.

A statement by the Department of Health and Human Services said that the final rule regarding the mandate's application to many religious groups "is similar to, but simpler than" a previous proposal in February.

Issued under the Affordable Care Act, the mandate requires employers to offer health insurance plans covering contraception, including some drugs that can cause early abortion, as well as sterilizations.

In the months that followed its release, the mandate became the subject of lawsuits by more than 200 plaintiffs across the nation who claimed that it forced them to violate their deeply-held religious beliefs.

Faced with a wave of protest from objecting religious organizations, the Obama administration announced in early 2012 that it intended to modify the mandate. It issued a one-year "safe harbor" delaying the implementation of the mandate for these organizations while it considered various proposals for an "accommodation" for their right to religious liberty.

Over the following months, the administration engaged in a multi-step process of revising the mandate. That process was completed with the release of the final rule on June 28.

The final rule maintains the definition of "religious employer" proposed in February, which allows a full exemption from the mandate for those employers that fall under Internal Revenue Code, Section 6033(a)(3)(A)(i) or (iii), which "refers to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order."

The administration has said that this "would primarily include churches, other houses of worship, and their affiliated organizations."

Religious groups have voiced concerns that faith-based organizations – such as soup kitchens, hospitals and schools – that are not affiliated with a specific house of worship would not be exempt.

For these religious groups that object to the mandate but do not qualify for the exemption, the administration has finalized an "accommodation."

Earlier suggestions for this accommodation had involved separate health insurance policies for contraceptive coverage that would be given for free by the objecting organizations' health insurance issuers.

The final rule changes this slightly, simplifying the process to instead require insurance issuers to directly "provide payments for contraceptive services" purchased by women working for religious employers who oppose such products.

Self-insured religious employers will work with a third party administrator, which will act in place of an insurance issuer to provide or arrange for the "no-cost payments" for employees' contraception.

"Issuers are prohibited from charging any premium, fee, or other charge to eligible organizations or their plans, or to plan participants or beneficiaries, for making payments for contraceptive services, and must segregate the premium revenue collected from eligible organizations from the monies they use to make such payments," the rule said.

"In making such payments, the issuer must ensure that it does not use any premiums collected from eligible organizations."

This places the burden of payment for the objectionable products on the insurance issuers themselves.

Asked during a press call how the insurance issuers would be reimbursed for these payments, an HHS official responded that they would not need to do so because paying for birth control is "cost-neutral" for them, due to the resulting decline in childbirth costs and the other "health benefits" afforded by contraception.

However, the idea that contraceptives can be offered free of cost was rejected by pharmacy directors in a national survey shortly after the accommodation was initially announced last year.

Religious freedom advocates initially responded to the announcement of the final rule – which was more than 100 pages in length – by indicating a desire to examine it more closely in order to see whether it adequately addresses the religious freedom concerns that had been raised.

Among these concerns was the complaint that religious employers under the "accommodation" would still be facilitating the objectionable coverage because the plans that they offer are necessary to "trigger" the contraception coverage or funding.

Some critics of the mandate also warned that insurance companies would find that contraception was not actually "cost-neutral" any may ultimately end up funding it by raising the cost of the objecting employers' premiums.

The question of religious individuals running for-profit businesses had also been discussed. More than a dozen for-profit companies have filed lawsuits over the mandate, including arts and crafts giant Hobby Lobby and several other manufacturers, publishers, medical groups and other employers. However, the final rule does not allow any accommodation for these employers.