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HHS Releases Proposed Rule on Accommodation to Contraceptive Coverage Rules

HHS Releases Proposed Rule on Accommodation to Contraceptive Coverage Rules

February 1, 2013 — HHS on Friday announced a proposed rule clarifying how employees of certain religiously affiliated not-for-profits will be able to access no-cost contraceptive coverage, The Hill's "Healthwatch" reports (Baker, "Healthwatch," The Hill, 2/1).

The proposal builds on previously announced accommodations for religiously affiliated not-for-profits that object to the federal contraceptive coverage rules being implemented under the Affordable Care Act (PL 111-148). The contraceptive coverage rules are based on recommendations from the Institute of Medicine on women's preventive services and require that most health plans cover contraceptive services without copayments or deductibles.

In a fact sheet on the proposed rule, HHS noted that, as it has previously stated, the employer's insurer must provide contraceptive coverage directly to employees of religiously affiliated not-for-profits that object to offering it themselves. The proposed rule states this accommodation also applies to self-insuring religiously affiliated not-for-profits that must use a third-party administrator to arrange for the coverage with another insurer, whose costs would be offset through lower user fees, which are fees paid by insurers for operating in federally led health insurance exchanges ("Washington Wire," Wall Street Journal, 2/1).

HHS also explained how the process will work for notifying employees of the coverage. Under the proposed rule, a not-for-profit would inform its insurer or third-party administrator that it qualifies for the accommodation, and the insurer would then notify the employees that it would provide them with the no-cost contraceptive coverage through a separate policy not connected to the employer (Kennedy, USA Today, 2/1).

Clarification for Houses of Worship

The proposed rule also simplifies the definition of entities that are considered "religious employers," which are completely exempt from the contraceptive coverage requirements. HHS said it would remove criteria stating entities that qualify for the exemption must have the inculcation of religious values as its purpose and primarily employ and serve people of its same faith.

Instead, HHS would use only an Internal Revenue Service definition that primarily includes houses of worship and their affiliated organizations.

The department noted that this change is not expected to expand the number of employers that qualify for the exemption. Rather, the change aims to clarify that a house of worship is not excluded from exemption if it employs or provides charitable services or other outreach to people of different faiths ("Washington Wire," Wall Street Journal, 2/1).

Initial Reaction

The U.S. Conference of Catholic Bishops, which has vehemently fought the contraceptive coverage rules, said it would review the new proposal.

Women's groups responded positively to HHS' announcement. Cecile Richards, president of the Planned Parenthood Federation of America, said, "This policy delivers on the promise of women having access to birth control without co-pays no matter where they work. She added, "Of course, we are reviewing the technical aspects of this proposal, but the principle is clear and consistent. This policy makes it clear that your boss does not get to decide whether you can have birth control" ("Healthwatch," The Hill, 2/1).

Judge Dismisses Suit by St. Louis Archdiocese

In related news, U.S. District Judge John Ross on Tuesday dismissed a lawsuit filed by the Archdiocese of St. Louis and Catholic Charities challenging the contraceptive coverage rules, the St. Louis Review reports.

Ross ruled that the lawsuit was premature because the federal government is still finalizing the rules. In a statement, the archdiocese noted that the judge's decision "is not in any way a ruling on the merits of our argument, rather it is an opinion that to litigate this issue when the regulations are not in final form would be fruitless" (Brinker, St. Louis Review, 1/31).