Written by Don Byrd
UPDATE: The HHS announcement is here. Some initial details below:
1. This is yet another proposed rule, not a final rule, that asks for public comment through April 8. You can read the proposed rules here.
2. The definition of religious employer would been expanded somewhat by the changes announced today, but the extent of that expansion remains a bit murky. The criteria for exemption as a religious employer adopted nearly a year ago included the following elements: (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 described in section 6033(a)(1) and 6033(a)(3)(A)(i) or (iii) of the Code
Today’s announced change would essentially remove the first three prongs of the test, exempting nonprofits that are referred to in the Code as “churches, their integrated auxiliaries, and conventions or associations
of churches, as well as to the exclusively religious activities of any religious order,” regardless of whether it happens to employ, serve, or have a purpose that extends, beyond its particular religious values or tenets.
3. From the proposed rule: “an organization is not considered to be
organized and operated as a nonprofit entity if its assets or income accrue to the benefit of
private individuals or shareholders.”
4. Maybe the most important for current controversies, other eligible plans, beyond those of religious employers, will receive an accommodation if it is established or maintained by organizations that meet the following criteria: (1) The organization opposes providing coverage for…contraceptive services required to be covered…on account of religious objections.(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies that it satisfies the first three criteria.
5. This accommodation would direct insurers to remove the offending service(s) from the group plan, but to offer such service(s) separately and at no cost directly to individuals within the plan who wish such coverage.
More to come….
