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Obama Administration Affirms, then Adjusts, Contraceptive Mandate
Administration's announcement provoked critical firestorm

By Stephen Miller, CEBS  1/25/2012
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updated 2/13/2012 

Update: White House 'Accommodation'
Retains No-Cost Contraceptive Coverage

Opposition to mandate is likely to continue 

On Feb. 10, 2012, the White House announced that an adjustment will be made to implementing Department of Health and Human Services (HHS) regulations on the politically sensitive mandate that employers—including religiously affiliated nonprofit organizations—cover birth control and related services at no cost to female employees.

Under the revised policy, which the White House termed an “accommodation,” religiously affiliated nonprofit employers such as schools, charities, universities and hospitals will be able to provide their workers with plans that exclude contraceptive coverage. However, the insurance companies that provide the plans will have to offer those workers the opportunity to obtain additional contraceptive coverage, including the so-called “morning after” pill and sterilization procedures, directly at no additional charge to the employees.

It was unclear whether the proposed accommodation might result in indirect payment for these services by employers through higher premiums. Moreover, issues that remained unresolved pending further details and guidance include how the accommodation might apply to religiously affiliated institutions that self-fund group health coverage for their employees.

President States Position; Bishops Respond

“Neither cost nor employer should dictate a woman’s ability to make choices about her own health,” according to the White House announcement. At a news conference President Barack Obama stated, “No woman’s health should depend on who she is or where she works or how much money she makes. Every woman should be in control of the decisions that affect her own health. Period.”

Cardinal-Designate Timothy Dolan, president of the U.S. Conference of Catholic Bishops (USCCB), released an initial response to Obama’s announcement that said, “The past three weeks have witnessed a remarkable unity of Americans from all religions or none at all worried about the erosion of religious freedom and governmental intrusion into issues of faith and morals. Today’s decision to revise how individuals obtain services that are morally objectionable to religious entities and people of faith is a first step in the right direction. We hope to work with the administration to guarantee that Americans’ consciences and our religious freedom are not harmed by these regulations.”

However a follow-up statement by the USCCB, released late on Feb. 10, took a harder line, declaring that “the only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.

The USCCB noted that the proposed accommodation “would still mandate that all insurers must include coverage for the objectionable services in all the policies they would write. At this point, it would appear that self-insuring religious employers, and religious insurance companies, are not exempt from this mandate.”

Nevertheless, the White House indicated it does not intend to make any more changes to the rule. “We put out the plan that reflects where the president intended to go. This is our plan,” said White House chief of staff Jacob Lew on Feb. 12. 

On Jan. 20, 2012, Secretary of the U.S. Department of Health and Human Services (HHS) Kathleen Sebelius reaffirmed that the department will enforce a rule issued under the Patient Protection and Affordable Care Act (PPACA) requiring health insurers, including employer-sponsored group health plans, to provide women with a range of preventive health services including birth control and related counseling without charging a co-payment, co-insurance or deductible.

Under the rule released in August 2011, some religious organizations that employ or serve people who are required to adhere to religious beliefs are exempt from the requirement. But religious organizations that do not meet those qualifications are required to provide contraceptive coverage to employees. While churches are exempt, for example, religious universities and hospitals are not.

New health plans will need to include contraceptive services without cost-sharing for insurance policies with plan years beginning Aug. 1, 2012. However, Sebelius announced that, after evaluating comments, HHS will add an element to the final rule. Nonprofit employers who, based on religious beliefs, do not provide contraceptive coverage in their insurance plan will be provided an additional year, until Aug. 1, 2013, to comply with the law. Employers wishing to take advantage of the additional year must certify that they qualify for the delayed implementation.

"This additional year will allow these organizations more time and flexibility to adapt to this new rule," Sebelius said in her statement. "We intend to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics and hospitals with income-based support. We will continue to work closely with religious groups during this transitional period to discuss their concerns."

Sebelius said she believed that "this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services."

Support for the Announcement…

NARAL Pro-Choice America, an advocacy group, issued a statement supporting the HHS announcement, saying, "The Obama administration resisted a pressure campaign from anti-contraception groups to broaden the refusal rule in a way that would have allowed many employers, including universities and hospitals, to refuse to cover birth control."

"All women should have access to contraceptive coverage, regardless of where they work," said NARAL President Nancy Keenan. "The administration stood firm against intensive lobbying efforts from anti-birth-control organizations trying to expand the refusal option even further to allow organizations and corporations to deny their employees contraceptive coverage. As a result, millions will get access to contraception—and they will not have to ask their bosses for permission," she said.

…and Opposition

Critics of the health care reform law have charged that the contraception mandate includes abortion-inducing drugs and sterilization coverage for employees, and that the requirement to provide birth control counseling opens the door to subsidized counseling on abortion services.

Following the HHS announcement, the U.S. Conference of Catholic Bishops (USCCB) declared that it intends to pursue a legal challenge to the federal rules. “Never before in our U.S. history has the federal government forced citizens to directly purchase what violates our beliefs. At issue here … is the survival of a cornerstone constitutionally protected freedom that ensures respect for conscience and religious liberty," said Cardinal Daniel DiNardo, archbishop of Galveston-Houston and chairman of the USCCB Committee on Pro-Life Activities, in a released statement.

"The administration reaffirmed the mandate, and offered only a one-year delay in enforcement in some cases—as if we might suddenly be more willing to violate our consciences 12 months from now," wrote Timothy Dolan, archbishop of New York and president of the USCCB, in a Wall Street Journal op-ed following the HHS announcement. "As a result, all but a few employers will be forced to purchase coverage for contraception, abortion drugs and sterilization services even when they seriously object to them. All who share the cost of health plans that include such services will be forced to pay for them as well. Surely it violates freedom of religion to force religious ministries and citizens to buy health coverage to which they object as a matter of conscience and religious principle," he said. 

Responding to criiticism of the HHS announcement, White House spokesman Jay Carney said the administration will not reconsider its decision, according to a report by the Associated Press.

Stephen Miller, CEBS, is an online editor/manager for SHRM.

Related Article:

New Plans Required to Cover Birth Control with No Cost-Sharing, SHRM Online Benefits Discipline, August 2011

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