Health Insurance Report™ helps you track and analyze legal, legislative, and regulatory developments affecting the health-insurance industry throughout implementation of the Affordable Care Act...
By Sara Hansard
Health and Human Services Secretary Kathleen Sebelius Jan. 20 announced a new element to a rule from 2011 on covered preventive services that will require many nonprofit religious employers to cover contraception by August 2013.
An interim final rule issued in August 2011 (see previous article) required most health insurance plans to cover preventive health services for women, including recommended contraceptive services, without charging a copayment, coinsurance payment, or deductible, Sebelius said in a statement. Compliance is required by Aug. 1 for most new and renewed health plans, she said.
The 2011 rule allowed some nonprofit religious employers to choose whether to cover contraceptive services, Sebelius said, adding that HHS decided to “add an additional element” based on comments. Sebelius said that nonprofit employers “who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until Aug. 1, 2013, to comply.” Employers who want the extra year must certify that they qualify for the delay, Sebelius said.
Under the Patient Protection and Affordable Care Act, preventive services must be covered without requiring policyholders to make cost-sharing payments. Employers with more than 50 employees must provide health insurance under the law or pay penalties for not doing so.
Organizations such as churches, which might not cover contraceptive services for employees because of religious objections, still are exempt from the requirement, government officials said during a background briefing with reporters.
Primary and secondary schools affiliated with religious organizations could be exempt from the requirement, but universities, charities, hospitals and other entities affiliated with religious organizations must come into compliance in 2013, an official said. “Some schools are very, very closely associated with a church,” such as parish schools, the official said. Religious organizations that are exempt from the requirement to cover contraceptives must meet criteria in the final rule determining their eligibility, the official said.
The new policy stance, which is an upcoming final rule from HHS, will be “posted in the coming days,” an HHS spokeswoman told Bloomberg BNA.
Reactions to the new rule included praise from a progressive group and criticism from a House Republican who said the Obama administration is using the one-year delay to put off implementation of a controversial decision until after the 2012 election.
The final rule on preventive health services will ensure that women with health insurance coverage have access to the full range of the Institute of Medicine's recommended preventive services, including all Food and Drug Administration-approved forms of contraception, according to Sebelius's statement. The final rule is consistent with laws in a majority of states that require contraception coverage in health plans, she said.
In the Jan. 20 telephone briefing, one of the government officials who spoke with reporters said the preventive services that must be covered include all contraceptive services approved by FDA, which includes “Plan B” post-intercourse emergency contraception, sterilization, intrauterine devices, hormonal methods, and patient education and counseling.
Abortion services are not covered, the officials said.
“Women will not have to forego these services because of expensive co-pays or deductibles, or because an insurance plan doesn't include contraceptive services,” Sebelius said. “Scientists have abundant evidence that birth control has significant health benefits for women and their families,” the secretary's statement said. Contraception reduces health costs and is the most commonly taken drug by young and middle-age women in the United States, it said.
“Grandfathered” plans that existed before PPACA was enacted in 2010 are exempt from the preventive services requirement as well, one of the government officials said in the briefing. That official cited estimates that between 1 million and 2 million employees work for nonprofit religious organizations that could be affected by the Jan. 20 policy change. However, the official said, HHS does not know how many of those workers are covered by employer plans.
Sebelius said the additional year granted the nonprofit religious groups “will allow these organizations more time and flexibility to adapt to this new rule.” HHS “intends to require employers that do not offer coverage of contraceptive services to provide notice to employees,” which must state that contraceptive services are available at community health centers, public clinics, and hospitals with income-based support, the secretary's statement said.
“This decision was made after very careful consideration, including the important concerns some have raised about religious liberty,” Sebelius said. “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services,” she said, pledging to “continue to work closely with religious groups during this transitional period to discuss their concerns.”
An official speaking on the press call said comments from several of the nonprofit religious groups that do not cover contraception due to religious objections “expressed concerns about how they would have to adjust plans in order to cover contraceptives. We know that a lot of these organizations may be large organizations. There are approval processes that require the involvement, for example, of boards.”
The transitional period “responds to those particular concerns. It really gives those organizations some additional time to sort out how they will be adjusting their plans within their organizational structure,” the official said. In response to a comment from a reporter that the organizations are not expected to change their views, the official said, “That's correct.”
About 200,000 comments were filed on the interim final rule, which was a “significant number of comments,” the official said. No additional public comments will be taken on the final rule, the official said.
Student health plans offered by many colleges and universities are not subject to the preventive service final rule, an official said. HHS will release information “soon” concerning requirements for different types of health plans, such as student health plans, the official said. HHS issued a proposed regulation governing student health plans in February 2011 (see previous article).
Sister Mary Ann Walsh, director of media relations for the U.S. Conference of Catholic Bishops, told Bloomberg BNA the HHS final rule is “unconscionable. This is the first time the federal government has ever ordered citizens to pay for services that violate their conscience.”
The group is “looking at all options,” Walsh said. “We certainly are going to challenge it one way or another,” she said.
“The Catholic people will not be happy with this. I'm certain many people in Congress will not be happy with this,” Walsh said. “Whatever steps you have to take to preserve freedom of religion we certainly will take.”
The issue is not just “a Catholic issue,” she said. “It's an American issue. Every citizen is affected by this.”
Walsh said the exemption for religious organizations is too narrow and applies only to “organizations which hire their co-religionists and serve their co-religionists. The [American Civil Liberties Union] designed it. As the law stands, you have to show your baptismal certificate at the emergency room. It's crazy. Jesus Christ wouldn't make this exemption. He helped everybody.”
Rep. Joseph R. Pitts (R-Pa.), chairman of the House Energy and Commerce Committee's Health Subcommittee, said in an e-mail statement to Bloomberg BNA that HHS's rule to require health insurance plans to cover contraceptive services “has been adamantly opposed by religious employers based on moral objections.”
“So what does a one-year delay accomplish? Does HHS expect religious employers to discard their moral and religious beliefs?” he asked. “The Obama administration is simply using this to delay implementation of a highly-controversial decision until after the next election.”
Pitts called the decision “shameful,” and said, “The real tragedy is forcing religious employers to provide health care benefits against their conscience.”
Sen. Orrin Hatch (R-Utah) said Jan. 20, “Today's decision by the Obama administration shows once again that in their mind, politics will always trump the Constitution.” Hatch added that the problem is not that religious institutions need more time to comply with the requirement, “it's that they're forced to comply at all.”
The Center for American Progress issued a statement from its president, Neera Tanden, calling the final rule “a tremendous victory for both women's health and their basic health needs. Women of all religious backgrounds use birth control and they deserve to have it covered by their employer-sponsored health plans.”
Rep. Rosa L. DeLauro (D-Conn.), ranking member on the Labor, Health, and Human Services Subcommittee of the House Appropriations Committee, issued a statement saying she was “encouraged that the Obama administration and the Department of Health and Human Services have made the right choice concerning women's access to health care services.”
“One of the main goals of the Affordable Care Act was to expand affordable access to care for all Americans,” she said. “And that specifically includes contraception coverage.”
The HHS secretary's statement is available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
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