New Guidance on Contraceptive Coverage Strives to Preserve Access, Practitioners Say

Recent guidance on contraceptive coverage shows that the federal agencies implementing the nation's health-care law are trying to ensure that women still have access to that coverage even if their employer objects to providing it, practitioners said.

“It's clear the agencies are trying their best to preserve access for these women who may work for what would now be a Hobby Lobby organization, or an eligible organization, to preserve their access to contraceptive coverage without cost sharing. So I do think that the agencies are trying, but their options were constrained by the Supreme Court,” Tamara S. Killion, a principal at Groom Law Group Chartered in Washington, told Bloomberg BNA on Aug. 27.

The high court ruled June 30 that the contraceptive coverage regulations implementing the Affordable Care Act's preventive services mandate for women violate the Religious Freedom Restoration Act with respect to closely held corporations (Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, U.S., 6/30/14).         

On Aug. 22, the departments of Health and Human Services, Labor and Treasury issued an interim final rule and proposed rule on coverage of contraception under the ACA.         

Under the interim final rule, nonprofit religious organizations objecting to contraception won't have to authorize the coverage, but will have to notify the HHS of their objection. The proposed rule sought input on how the departments could extend the same “accommodation” to closely held for-profit entities. The proposed rule asked for comments on how to define a closely held for-profit entity, providing two possibilities and welcoming input on other possible definitions.         

Judy Waxman, vice president for health and reproductive rights at the National Women's Law Center in Washington, told Bloomberg BNA on Aug. 26 that the goal of the newly issued guidance “seems to be the same goal that the administration has had all along, which is to make sure there's a way for women to get these crucial services” and this guidance “could accomplish that.”         

Timothy S. Jost, a health law and policy professor at Washington and Lee Law School in Lexington, Va., told Bloomberg BNA on Aug. 27, “What they're trying to do is come up with a middle ground where women will get necessary contraceptive services, but the employers will not have to pay for them and will not even have to get involved in any way.”         

How Far?                                                                       

Jost said some will think that this guidance goes far enough to accommodate those with religious objections to providing contraceptive coverage, but others might not.         

“Some of them are willing to live with the accommodation they already had, and I think that more will probably be willing to live with this accommodation. I do think, however, that they've gone far enough for the courts. They've done pretty much exactly what the Supreme Court suggested they do in Wheaton College,” he said.         

In Wheaton Coll. v. Burwell, 134 S. Ct. 2806, U.S., 7/3/14, the high court on July 3 granted Wheaton College, a Christian college in Illinois, an injunction prohibiting the federal government from enforcing the ACA's contraceptive coverage provisions, pending the school's appeal of a federal trial court decision, as long as the college “informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services”.         

Jost said he thinks some of the lawsuits against the federal government on this topic may continue, but that the courts will say “they've done what they can do.”         

“In the end, it's a question of the least restrictive means of accomplishing a compelling governmental interest, and I think they've gotten there,” he said. 

Excerpted from a story that ran in Pension & Benefits Daily (8/28/2014).