By K. Hollyn Hollman, BJC General Counsel
After harsh criticism, dozens of lawsuits and heated debate challenging its rules on mandated contraceptive care coverage, the Obama administration announced Feb. 1 what Health and Human Services Secretary Kathleen Sebelius called “the next step” in providing no-cost preventive care for women, while respecting the religious concerns of their employers.
It is clear that the highly-anticipated proposed regulations won’t yet bring the controversy to an end. The administrative rulemaking process requires a two-month public comment period, during which any citizen may submit feedback on the new rule. A predecessor rule, published last March, resulted in more than 200,000 comment submissions. The good news, however, is that the proposals reflect some significant improvements and a commitment to work with stakeholders to find reasonable solutions.
Under the Affordable Care Act, most health plans must cover a wide range of preventive health services, including contraception for women without cost sharing. Last February, the Obama administration promised to work toward a rule that would address concerns of religious and religiously affiliated employers while preserving the stated goals of improving access to comprehensive health care and promoting gender equality through contraceptive services without co-pays.
The new rule makes two principal changes to the no-cost contraceptive coverage requirement. First, it amends the criteria set forth in the initial “religious employer” exemption. Early on the administration fashioned a religious employer exemption intended to exempt the group health plans of houses of worship. It provided, however, a cramped and novel definition of which employers qualified. In particular, it exempted only those employers whose primary purpose was the inculcation of religious values and that primarily hired and served people of the same faith. This led to criticism by some that the administration had assumed improper authority to determine which employers were “religious enough” to meet the test, and the clumsy language could have been interpreted in ways that might actually exclude some of the very institutions it was meant to protect. For example, critics noted that many churches are outwardly service-oriented, providing charitable social services to people of many different faiths (or no faith). It seemed illogical to define “religious employers” with reference to the religion of those they serve. This led to charges that the administration’s definition indicated a discriminatory preference for insular religious groups.
The new rule eliminates the multi-factor test and instead incorporates a provision found elsewhere in federal law to describe pervasively religious organizations, which are more likely to be eligible for other (unrelated) statutory exemptions. Defining exempt religious employers using familiar and workable language that applies generally to houses of worship and close affiliates places the exemption on stronger legal footing and better reflects the administration’s original intent.
Second, the new rule lends clarity regarding accommodations for religiously affiliated organizations that object to providing contraceptive coverage but do not fall within the religious employer exemption. It defines “eligible organizations” as nonprofit entities that oppose some or all required contraceptive services based on religious beliefs, hold themselves out as religious organizations, and self-certify that they meet these criteria. According to the rule, this proposed definition is “intended to allow … nonprofit religious organizations, including nonprofit religious institutional health care providers, educational institutions, and charities, with religious objections to contraceptive coverage to qualify for an accommodation.” As with the modified religious employer definition, this improvement should allay some concerns about government overreach. It provides concrete protections that many critics claimed were merely illusory promises made by an administration with no intent to follow through. Further, it could resolve the claims of at least some of the institutions currently battling the contraceptive coverage requirement in court. The rule also offers greater details about the technical process by which women employees of eligible organizations could still obtain contraceptive coverage either directly from the insurer or, in the case of self-insured employers, through third party administrators. These changes should at the very least invite constructive debate over best methods of implementation. Notably, the rule makes it clear that the administration does not intend for its proposals to extend to for-profit, secular employers, and this will remain a point of contention in pending litigation.
To be sure, this latest step in the Obama administration’s rulemaking on the no-cost contraception coverage provision won’t satisfy some objecting employers. Nonetheless, it marks an important step forward in the lawmaking process for the benefit of healthcare and the protection of religious liberty.
For more on the administration’s announcement, see the cover story of this edition of Report from the Capital.
From the February 2013 Report from the Capital. Click here to go to the next article.
