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Answers About the Administration's Proposed Birth Control Rule 

2/5/2013  © Kaiser Health News 

On Jan. 31, 2013, the Obama administration unveiled a proposed rule spelling out how birth control expenses will be covered for employees of religious-affiliated groups opposed to providing contraception to employees. 

Officials announced in 2012 that under the preventive care provisions of the federal Patient Protection and Affordable Care Act, contraception should be provided without charge to women, although it exempted houses of worship, like churches. But the guarantee of coverage applied to such religious-affiliated organizations as hospitals and colleges. The policy sparked fierce opposition from leaders of Catholic and other religious groups, and it has led to more than 40 court challenges by other religious-affiliated groups and private employers opposed to providing contraception. 

Contraception Coverage

The new regulations call for insurers who sell the coverage to pick up the cost of the contraceptives. For the first time, it also lays out a plan for religious institutions that self-insure. In those organizations, the administrator of the plan would need to find an insurer to provide a separate policy for women in that workplace and the insurer would be compensated with a reduction in the fees it pays to the state-based exchanges being established to provide coverage to individuals and small businesses.

The new rule also guarantees that religious employers are not disqualified from the exemptions even if their work extends “beyond the inculcation of religious values” or if they hire workers of different faiths.

Here are some common questions and answers from Kaiser Health News that help explain the administration’s contraceptive policy and the opposition.  

Q. What does the new regulation require?

A. Under the rule, women employed by nonprofit religious organizations opposed to contraceptives, such as Catholic hospitals or colleges and student health plans, are entitled to get contraceptive services and products without a co-payment. But the organization is not required to bear the cost of the service.  

In those workplaces, the employer must tell its insurer that it will not cover the costs, and the insurer automatically would notify workers that it will provide the coverage without cost sharing or other charges through separate individual health insurance policies, according to a fact sheet released by the U.S. Department of Health and Human Services (HHS).  

In the rule, the administration said this procedure “would alleviate the need for the eligible organization to contract, arrange, pay, or refer for contraceptive coverage while providing contraceptive coverage to plan participants and beneficiaries at no additional cost.” It also said this should not increase costs for the insurer and may save money by eliminating some pregnancies. 

The procedures will be a bit different for religious-affiliated workplaces that self-insure, which means the employer assumes the risk of the insurance but generally hires a private firm—often an insurer—to handle the administration of the coverage. In these plans, the administrator would “work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies,” the fact sheet says. The insurer could offset the costs of those policies through an “adjustment” in the fees that will be charged to insurers participating in the health exchanges.  

Q: What led to this proposal?

A: In 2012, the administration announced that all insurance plans would be required to cover contraception as part of the list of free preventive services mandated by the 2010 federal health law. That regulation exempted houses of worship, like churches, from the requirement to provide contraceptive services at no cost to employees, but religious-affiliated institutions, such as universities and hospitals, would have to provide coverage for contraception.  

Some religious groups, including the United States Conference of Catholic Bishops, objected on the basis that it violated their religious freedom. The resulting furor quickly engulfed the White House and even some Democrats and Catholic groups that had supported the health law, such as the Catholic Health Association, turned against the policy.  

In February 2012, President Barack Obama said the administration would revise the policy to make sure that the religious-affiliated groups did not have to pay for the coverage. But while announcing a compromise, he also insisted that women working at those groups should have access to contraceptives without charge.

Q. How does the new federal rule and religious exemption compare with contraceptive coverage laws currently on the books in states? 

A. The big difference is that under the federal rule birth control will be available without the employee being responsible for a co-payment. That is currently true in just a handful of states. Some 28 states have mandated coverage of birth control, and 20 of those have some sort of exemption for religious employers. According to a report by the Guttmacher Institute, the state exemptions range from very narrow definitions, such as only for churches, to broader exemptions, including religious elementary and secondary schools. The most expansive state exemptions allow religious-affiliated colleges and hospitals not to provide birth control coverage. 

The federal compromise cleaves closely to laws on the books in Hawaii, Connecticut and West Virginia. In all of those states, insurers must cover contraceptives for employees of institutions who choose not to do so for religious reasons. The federal rule, though, is unlike state laws that require the religious employers to tell workers where contraception coverage is available.  

Q. What about the legal challenges to the plan?

The mandate to cover contraceptive care has inspired at least 44 lawsuits against the government, according to The Becket Fund for Religious Liberty, a legal organization fighting the mandate. The plaintiffs, who include private employers with strong religious views, generally argue that the contraception policy conflicts with the 1993 Religious Freedom Restoration Act, which prohibits the federal government from imposing a "substantial burden" on a person's "exercise of religion" unless it can prove that doing so is "the least restrictive means of furthering [a] compelling governmental interest." 

The administration contends that the mandate is only an indirect burden on religious employers. Courts around the country are taking up the cases and results have been mixed. Some scholars believe the issue could land eventually at the U.S. Supreme Court. 

The proposed rule does not provide the nonreligious businesses who are suing the same ability to avoid providing contraceptive coverage that is afforded religious-affiliated groups.

Kaiser Health News is an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente. © 2013 Kaiser Health News. All rights reserved. Republished with permission.

Related Articles:

Sotomayor Denies Emergency Injunction of Contraceptive Pill Mandate, SHRM Online Legal Issues, January 2013

For 2013, All Plans Must Cover Women’s Preventive Services, SHRM Online Benefits, November 2012

HHS Clarifies Temporary Safe Harbor from Contraceptive Coverage, SHRM Online Benefits, September 2012

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