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Three Federal Agencies Propose Contraceptive Rules

Ernie Shannon's picture

Three federal agencies yesterday afternoon jointly posted in the Federal Register proposed rules for the implementation of health insurance coverage for preventive services for women including contraceptives. The rules summary suggests the agencies are seeking alternative methods to implement the rules in light of a decision to allow non-profit religious institutions to refuse to provide the coverage.

Officials with the Departments of Health and Human Services, Labor, and the Treasury submitted the Advanced Notice for Proposed Rulemaking to the register for review by the public for a period of 90 days. Essentially, the policy provides women with access to preventive services including contraceptives without cost sharing. The original announcement on February 10 that the Obama administration planned to require all employers including churches and other faith-based organizations to provide the contraceptive coverage started a firestorm.

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The Catholic Church led out on a campaign to overturn the requirement arguing that institutions for whom providing contraceptives or paying for their use was a violation of their conscience and moral teachings should be able to opt out. Eventually, the administration agreed and said “non-profit religious organizations “non-profit religious organizations (would not be) forced to pay for, provide, or facilitate the provision of any contraceptive service they object to on religious grounds.”

In asking for public comment on the proposed rules, the federal government is walking a fine line between “accommodating such organizations while ensuring contraceptive coverage for plan participants and beneficiaries covered under their plans without cost sharing.” After Health and Human Services Secretary Kathleen Sebelius confirmed that the administration would respect the right of religious institutions to back out of the contraceptive requirement, the administration hinted that insurance companies might be required to cover those costs. That too has caused concern on the part of the insurance industry already feeling “put upon” regarding many aspects of the Affordable Care Act.

The Advance Notice in the Federal Register reflects the government’s dilemma regarding contraceptive coverage. The document, for instance, defines the difference between a Catholic elementary school with its own health insurance plan from one that piggybacks on the Catholic diocese plan.

“For example, a Catholic elementary school may be a distinct common-law employer from the Catholic diocese with which it is affiliated. If the school’s employees receive health coverage through a plan established or maintained by the school, and the school meets the definition of a religious employer in the final 9 regulations, then the religious employer exemption applies. If, instead, the same school provides health coverage for its employees through the same plan under which the diocese provides coverage for its employees, and the diocese is exempt from the requirement to cover contraceptive services, then neither the diocese nor the school is required to offer contraceptive coverage to its employees.