In FAQs about Affordable Care Act Implementation Part 36, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) have decided not to modify the current accommodation for employers that object to contraceptive coverage on religious grounds. No feasible approach was identified that would resolve the concerns of religious objectors, while still ensuring that women enrolled in the organizations’ health plans have access to coverage of the full range of FDA-approved contraceptives without cost sharing.
Background. Under the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, employers must provide certain types of health insurance coverage to their employees. Employers with objections to providing coverage for contraceptive services can invoke an accommodation under regulations promulgated by the Departments. Under the accommodation, the employer does not have to contract, arrange, pay, or provide a referral for contraceptive services. However, the accommodation ensures that women enrolled in the employer’s health plan receive full coverage for contraceptive services through the same issuers or third-party administrators that provide or administer the rest of their health coverage. An employer can invoke the accommodation by self-certifying its eligibility using a particular form, which it then provides to its health insurance issuer or third-party administrator. Alternatively, the employer can self-certify by providing certain information to the HHS, without use of a particular form.
The U.S. Supreme Court, in Zubik v. Burwell (136 S. Ct. 1557 (2016)), considered claims that, even with the accommodation, employers’ rights under the Religious Freedom Restoration Act of 1993 (RFRA) were being violated. The Court reviewed supplemental briefs submitted by the parties, and then remanded Zubik and other similar cases after vacating the judgments in those cases, to allow the parties to arrive at an approach that accommodates the employers’ objections without compromising health coverage.
In July 2016, the Departments issued a Request for Information (RFI) to determine whether modifications to the existing accommodation procedure could resolve the objections asserted by the objecting employers (81 FR 47741, July 22, 2016). In response to the RFI, the Departments received over 54,000 public comments.
No modification at this time. The Departments have decided not to modify its accommodation regulations at this time. The Supreme Court had suggested a procedure where the objecting employer would inform their insurers that they did not want to include contraceptive coverage to employees, and the insurer would then separately provide contraceptive coverage to the employees without any involvement or payment from the objecting employer. However, the Departments concluded that this process would not be acceptable to either insurers or religious entities and would also undermine women’s access to health care. In addition, this process does not address self-insured employers. While insurers are independently obligated to provide contraceptive coverage under the ACA, third party administrators of self-insured plans are not. They must rather provide coverage under authorization from either the employer or the federal government. Commenters failed to identify any way in which this could happen without written notice.
The FAQs noted that, as explained in its briefs in Zubik, the Departments continue to believe that the “existing accommodation regulations are consistent with RFRA for two independent reasons. First, as eight of the nine courts of appeals to consider the issue have held, by virtue of objecting employers’ ability to avail themselves of the accommodation, the contraceptive-coverage requirement does not substantially burden their exercise of religion. Second, as some of those courts have also held, the accommodation is the least restrictive means of furthering the government’s compelling interest in ensuring that women receive full and equal health coverage, including contraceptive coverage.”
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