Government Requests Information on ACA Contraceptive Mandate

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In a recent Supreme Court case, Zubik v. Burwell, the justices vacated and remanded six federal appellate judgements on whether an accommodation (described below) for employers that object to providing contraceptive coverage under the Affordable Care Act’s (ACA) preventive services coverage mandate violated the Religious Freedom Restoration Act.  Essentially, as the Court awaits confirmation of a 9th justice they decided to kick the can down the proverbial road.

Enter the Departments of Health and Human Services (HHS), Labor, and Treasury, the agencies responsible for implementation of the ACA. On July 21, 2016, they released a “request for information” (RFI) intended to provide all interested stakeholders an opportunity to comment on several specific issues raised by the supplemental briefing and Supreme Court decision in Zubik v. Burwell.  Broadly, the RFI asks for suggestions on ways to further accommodate objections by religious non-profits to furnishing their employees coverage for contraceptive services in employer health plans.

Under the current accommodation, employers that object to providing contraceptives to their employees for religious reasons may either:

  1. Self-certify their objection (EBSA Form 700) to their insurer or third-party administrator, or

  2. Inform HHS of their objection and identify their insurer or third-party administrator so the government can authorize the insurer or third-party administrator to provide coverage.

The RFI is divided into three groups:

  1. The first set deals with possible alternatives to the current regulations’ requirements that objecting employers must take overt action to exempt themselves from being related with providing access to the contraceptives they object.
  2. A second set focuses on alternatives for contraceptive coverage if a religious objector has an outside insurance provider setting up and managing its (insured) plan.
  3. The third set focuses on self-insured plans for organizations that act as their own insurance provider.

All responses to the RFI are due by September 20, 2016. Although HHS asserts that the current accommodation remains consistent with the Religious Freedom Restoration Act, responses for this RFI may support objecting employers’ claims that new regulations need to be proposed.  Of course, there is always a possibility the RFI will not force any movement and litigation will return again to the Supreme Court for resolution (by that time surely with a 9th justice).

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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