New Proposed Rules on the Obamacare Contraception Mandate

A new Proposed Rulemaking has been issued with respect to the “Obamacare” contraception mandate.  It clarifes the obligations of three kinds of employers: religious employers, non profit religious organizations and, by omission, for-profit employers.

The Fact Sheet explains:

Exemption for Religious Employers
Group health plans of “religious employers” are exempted from having to provide contraceptive coverage, if they have religious objections to contraception.

Today’s NPRM [Notice of Proposed Rulemaking ] would simplify the existing definition of a “religious employer” as it relates to contraceptive coverage.

…The simple definition of “religious employer” for purposes of the exemption would follow a section of the Internal Revenue Code, and would primarily include churches, other houses of worship, and their affiliated organizations…

This proposed change is intended to clarify that a house of worship would not be excluded from the exemption because, for example, it provides charitable social services to persons of different religious faiths or employs persons of different religious faiths. …

Creating Accommodations for Non Profit Religious Organizations

Consistent with the Advance NPRM, the NPRM proposes accommodations for additional non profit religious organizations, while also separately providing enrollees contraceptive coverage with no co-pays. An eligible organization would be defined as an organization that:

  1. opposes providing coverage for some or all of any contraceptive services required  to be covered under Section 2713 of the PHS Act, on account of religious objections;
  2. is  organized and operates as a nonprofit entity;
  3. holds itself out as a religious organization; and
  4. self-certifies that it meets these criteria and specifies the contraceptive services for which it objects to providing coverage.

Under the proposed accommodations, the eligible organizations would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.

In addition, under the proposed accommodations, plan participants would receive contraceptive coverage through separate individual health insurance policies, without cost sharing or additional premiums. The issuer would work to ensure a seamless process for plan participants to receive contraceptive coverage.

With respect to insured group health plans, the eligible organization would provide the self-certification to the health insurance issuer, which in turn would automatically provide separate, individual market contraceptive coverage at no cost for plan participants. Issuers generally would find that providing such contraceptive coverage is cost neutral because they would be they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women’s health and fewer childbirths.

With respect to self-insured group health plans, the eligible organization would notify the third party administrator, which in turn would automatically work with a health insurance issuer to provide separate, individual health insurance policies at no cost for participants. …

The NPRM also proposes that an eligible religious non profit organization that is an institution of higher education that arranges for student health insurance coverage may avail itself of an accommodation comparable to that for an eligible organization that is an employer with an insured group health plan.

From the text of the Proposed Rulemaking:

The Departments do not propose that the definition of eligible organization extend to for profit secular employers [such as Hobby Lobby]. Religious accommodations in related areas of federal law, such as the exemption for religious organizations under Title VII of the Civil Rights Act of 1964, are available to nonprofit religious organizations but not to for-profit secular organizations.

Accordingly, the Departments believe it would be appropriate to define eligible organization to include nonprofit religious organizations, but not to include for-profit secular organizations.

CNN reports on the early Catholic reaction.

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Filed under Free exercise of religion, Religious rights

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