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Most employer health plans are likely to keep no-cost contraceptives
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updated on Nov. 10, 2017
Update: Attorneys General Sue to Keep Birth Control Mandate
The attorneys general of California, New York, Delaware, Maryland and Virginia filed a
motion for a preliminary injunction with the U.S. district court for northern California on Nov. 9, seeking to keep in place the federal mandate that employer-sponsored health plans provide women with no-cost contraceptive coverage under the Affordable Care Act.
The filing follows a
federal lawsuit filed by the same coalition of attorneys general earlier this month.
Earlier this year, New York's Attorney General Eric Schneiderman introduced state legislation to expand New Yorkers' access to contraception provided at no cost to health plan enrollees.
Most employer health plans are expected to continue providing no-cost contraception coverage for women, despite the Trump administration's
announcement of new rules that it will allow employers to claim a religious or moral objection to the Affordable Care Act's contraceptive coverage requirement.
"Employer-sponsored health plans for next year have, for the most part, been set already," said Kim Buckey, vice president of compliance communications at Birmingham, Ala.-based DirectPath, an employee engagement and health care compliance firm. "Given that there will undoubtedly be lawsuits filed immediately challenging the new rules, I don't think too many employers will make a midyear change, nor will those with noncalendar-year plans take any fast action."
Two New Rules
Under the Affordable Care Act, nongrandfathered plans must cover
18 types of contraception without cost-sharing. But on Oct. 5, the Departments of Health and Human Services (HHS), Labor and Treasury jointly issued two interim final rules, which took effect immediately, that will expand the ability of employers to opt out of the contraceptive requirement:
These exemptions are available to both private and public companies, and they won't have to file a request with the government to stop offering birth control coverage—they can simply notify their employees of the decision, according to HHS officials.
[SHRM members-only toolkit: Complying with and Leveraging the ACA]
Lawsuits Immediately Filed
The new policy reignites a fierce battle over one of the health care law's requirements to provide Food and Drug Administration-approved contraception at no cost. The same day the new rules were issued,
California's Attorney General Xavier Becerra, a Democrat, and
the American Civil Liberties Union filed lawsuits challenging the administration's actions. The
Center for Reproductive Rights followed a few days later. Other states and liberal advocacy groups were expected to do the same.
"This may potentially open the door for Equal Employment Opportunity Commission religious and sex discrimination complaints against employers who claim the exemptions for religious beliefs and moral convictions, if their female employees allege that their employers' beliefs are being forced on them," said Bobbi Kloss, HR leader at Benefit Advisors Network (BAN), a Cleveland-based consortium of health and welfare benefit brokers.
Employers considering using the religious or moral exemptions should take into account how employees will respond, "given the sensitive nature of the topic coupled with the polarized nature of the debate," said Perry Braun, BAN's executive director. And all employers should be prepared to address questions from employees on what their specific position will be.
"The energy that is expected to be put into the effort to challenge the proposal, the lack of clarity in the rules, the sensitive nature of the topic itself, and how divided the population is on the topic will lead employers to grow frustrated because every issue that takes time away from growing and running their business is not productive for them as a business leader," Braun observed.
Few May Drop Contraceptive Coverage
It is unclear how many organizations will now look to drop birth control coverage from their insurance plans. In the aftermath of the Supreme Court's 2014
Hobby Lobby ruling that closely held private companies—often family owned and not publicly traded—could seek an exemption on religious grounds,
only a few dozen eligible employers requested an exemption from the Obama administration,
Politico found last year.
In a news release, the Department of Health and Human Services said that the exemptions "may impact only about 200 entities, the number that filed lawsuits based on religious or moral objections."
"I don't see these new exemptions having any impact on 99 percent of the employers we work with today," said Brian Uhlig, Chicago-based senior partner and benefits consultant at Alera Group, an insurance and financial services firm. "Most employers do not view [the contraceptive mandate] as a financial burden to their health insurance plans."
Claiming the exemptions could also "hurt an employer's hiring and retention opportunities with Millennials, who are less religious and more about tolerance and allowing others to practice their own beliefs," Kloss said.
"Contraceptive coverage helps employers avoid the health care costs and lost productivity associated with unintended pregnancies," remarked Chatrane Birbal, senior advisor, government relations, at the Society for Human Resource Management. "Taking these factors into consideration, contraceptive coverage is actually less expensive than not providing it at all for employer-sponsored plans."
Added Buckey, "There would be tremendous employee relations repercussions if employers took this benefit away, especially given how many women are in the workforce, and I'm sure some employers have done the math comparing maternity costs to the cost of providing contraception."
Related SHRM Resources:
Health Care Reform Resources for Employers
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