Friday News Dump: That Contraception Thing

by Adrianna McIntyre

Hey guys, remember all of that controversy about companies needing to offer no-copay birth control in their insurance plans and some religious employers kicking up a fuss? In today’s news dump, the Department of Health and Human Services announced proposed changes to the ACA’s contraceptive coverage requirement, specifically as related to how the law defines “religious employer.” The Administration has attempted to accommodate women seeking birth control in cases of institutional religious objection, but it seems to have created a number of new hoops in the process. So, ladies, how’s your jumping?

The NPRM would eliminate criteria that a religious employer:

  • have the inculcation of religious values as its purpose;
  • primarily employ persons who share its religious tenets; and
  • primarily serve persons who share its religious tenets.

The simple definition of “religious employer” for purposes of the exemption would follow a section of the Internal Revenue Code, and would primarily include churches, other houses of worship, and their affiliated organizations, as defined by Section 6033(a)(3)(A)(i) or (iii)

This proposed change is intended to clarify that a house of worship would not be excluded from the exemption because, for example, it provides charitable social services to persons of different religious faiths or employs persons of different religious faiths.  The Departments believe that this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.

Creating Accommodations for Non Profit Religious Organizations 

Consistent with the Advance NPRM, the NPRM proposes accommodations for additional non profit religious organizations, while also separately providing enrollees contraceptive coverage with no co-pays.  An eligible organization would be defined as an organization that:

  1. opposes providing coverage for some or all of any contraceptive services required to be covered under Section 2713 of the PHS Act, on account of religious objections;
  2. is organized and operates as a nonprofit entity;
  3. holds itself out as a religious organization; and
  4. self-certifies that it meets these criteria and specifies the contraceptive services for which it objects to providing coverage.

Under the proposed accommodations, the eligible organizations would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.

What does it all mean for you? Well, nothing yet. Because of the way changes like this work, the Administration will be accepting public feedback through April 5; after this comment period, they might modify the proposed change–or they might finalize it, making it law. Expect this to be making headlines in the coming months. If it isn’t modified, the new rule would likely expand the exemption to include many  of the hospitals and universities that have been dominating the controversy, though it likely won’t extend to secular companies whose owners have brought suit based on their personal  religious beliefs.

Here’s the sentence that matters most for you student-type folk:

The NPRM also proposes that an eligible religious non profit organization that is an institution of higher education that arranges for student health insurance coverage may avail itself of an accommodation comparable to that for an eligible organization that is an employer with an insured group health plan.

In the language of normal people, this is clarifying that religious universities don’t have to offer contraceptive coverage to their employees or their studentsThe accommodation does require that insurance companies offer contraceptive to insured female employees/students at no cost outside the plan (without the employer paying for them) in these cases, which might bridge the gap for a number of institutions.

However, it seems that a deeply complicated dance may be required to get contraceptive coverage when institutions insure themselves, rather than fully contracting out to third-party insurer. According to Sarah Kliff and Michelle Boorstein over on Wonkblog, “Under the policy proposed Friday, self-insured plans opting out of contraceptive coverage would notify the company that administers their health benefits. That third-party administrator would then be responsible for arranging “separate individual health insurance policies for contraceptive coverage from an issuer providing such polices.”

Friendly reminder: if this proposal bothers you, you’ve got till April 5 to raise a ruckus. (And a hat-tip to Gordon Chaffin for tipping me off as soon as the Politico email hit his inbox.)


Adrianna is a graduate student in public policy and public health at the University of Michigan.
Follow her on Twitter @onceuponA.


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