Some regulations spark more comment fireworks than others. (LHP Photo/Allison Bell)

The Employee Benefits Security Administration (EBSA) has demonstrated the conversation-starting power of reproductive health by posting all 14,874 of the public comments it has received on a recent ruling dealing with coverage for contraceptive products and services.

EBSA, an arm of the U.S. Labor Department, developed the ruling together with the Internal Revenue Service and the U.S. Department of Health and Human Services (HHS) to implement provisions in the Patient Protection and Affordable Care Act of 2010 (PPACA) that call for major medical plans to make basic preventive services available to all enrollees free from cost-sharing requirements.

In July 2010, the agencies said in interim final regulations that the list should include items such as measles vaccinations for children and colon cancer screenings for adults.

In August, the agencies announced in an amendment to interim final regulations that the basic preventive services package should include coverage for contraceptive services and products.

The agencies decided to make the contraceptive services coverage requiring binding on all group health plans and health insurers, with no religious exemptions allowed.

The agencies did decide to create an exemption for “religious employers.”

The agencies defined a religious employer as an employer registered as a nonprofit religious institution under Section 6033(a) of the Internal Revenue Code that:

  • Has the inculcation of religious values as its purpose.
  • Primarily employs persons who share its religious tenets.
  • Primarily serves persons who share its religious tenets.

The definition applies mainly to churches, church auxiliaries, conventions and associations of churches, and religious orders, agency officials said in the preamble to the regulation amendment.

The amendment is set to take effect in August 2012.

Some members of the public have written to praise the amendment.

Lisa Williams of Cincinnati, for example, wrote to the agencies to commend their decision to require health insurers to cover the full cost of contraception, with no co-payment requirements.

“This policy places a much-needed importance on women’s health that is too-often not a priority in health care policy,” Williams writes in her comment letter. “Birth control is a critical part of preventive care, and making contraception available to all women, regardless of their insurance or ability to pay for it, will significantly reduce long-term health care costs associated with unplanned pregnancies.”

Emily Loen, who did not give her location, and who sells beads that women can use in natural family planning strategies, also wrote to praise the amendment.

“Not every woman who works for a religious organization practices that religion,” Loen says. “Restricting access discriminates against women who may have to work at say, a Catholic hospital, because it’s the only job available.”

Thousands of other members of the public who oppose the amendment sent the agencies a letter stating the following:

I am writing today to ask in the strongest way possible that you rescind the unjust and coercive mandate that all “contraceptives” and sterilization procedures be covered by private health insurance with no co-pay to patients. If you do not reverse course I ask you to expand conscience protections for any organizations that provide individual and group insurance and have moral or religious objections. I strongly oppose the government forcing free insurance coverage on Americans especially for drugs and devices that I oppose because some of these can cause an abortion (such as ella and Plan B).

 

I also ask you to reconsider your definition of religious employer and offer an authentic conscience protection for any organization and business that has moral or religious objection to providing such insurance to their employees. This legal mandate clearly violates the spirit of conscience laws which prohibit government discrimination against those who object to various health services on moral or religious grounds. The definition of “religious employer” in the regulation is so narrow as to only include churches, but will still mean that a host of businesses and organizations that have conscience objections will be required to choose between either violating their conscience or not being able to offer employees health insurance.

 

Please protect the conscience rights of insurers, providers and people like me who object to being forced by the federal government to offer or subsidize contraceptives and sterilization services, especially when some of these drugs can take the life of early unborn children. No Americans should be forced by the federal government to essentially subsidize services they object to. I again urge you in the strongest way possible to reverse course and remove contraceptives and sterilizations from the list of mandatory preventive services.

 

When federal agencies post public comments on regulations relating to insurance, letters from trade groups and professional societies usually outnumber letters from other sources.

In this case, almost all of the letters seemed to come from individual members of the public.

A handful of letters from representatives of organizations appear at the end of the list.

Gregory Lucey, president of the Association of Jesuit Colleges & Universities, Washington, and Jean Monahan and Chris Gacek, representatives of the Family Research Council, Washington, wrote to oppose the amendment.

Lucey says the religious exemption is too narrow.

“Because the rules define the exemption narrowly in terms of employment, it does not apply to our Jesuit Catholic colleges and universities, or to many other Catholic and other faith-based institutions,” Lucey says. “We absolutely seek to inculcate our students in the values of the Catholic faith…. As institutions of higher education, we embrace academic freedom and we encourage all of our students to learn how to question in the pursuit of knowledge. In no way, however, is this incompatible with our core identities as Jesuit Catholic institutions.”

The agencies should adjust the regulations away from employment-based criteria “and towards criteria that consider the underlying mission of the institution applying for the exemption,” Lucey says.

Monahan and Gacek say the current definition is coercive.

“In a democratic society, it is not the role of the [Obama] administration to dictate what does or does not violate another person’s conscience on matters as critical as life and death,” Monahan and Gacek say.

Helen Darling, president of the National Business Group on Health (NBGH), Washington, says the group supports the idea of encouraging employers to offer generous coverage for “evidence-based preventive care.”

But the NBGH also believes plans should be able to use value-based design features – differences in patients’ out-of-pocket costs – to encourage enrollees to get the care likely to deliver the highest value for the money spent, Darling says.

The current regulations seem to prohibit all cost-sharing for all contraceptive methods and sterilization procedures approved by the federal Food and Drug Administration, Darling says.

That “could substantially increase plan costs while providing minimal benefit for plan participants,” Darling says.

In some cases, Darling notes, approved contraceptives are almost identical to other contraceptives, and, in other cases, brand-name contraceptives are available in generic forms that may be cheaper.

Federal agencies should require group health plans to provide access to a reasonable range of contraceptive and sterilization procedures without cost-sharing but let plans use cost-sharing structures to steer enrollees toward some products and procedures rather than others, Darling says.

Federal agencies also should clarify that the sterilization coverage requirements apply only to treatment and services for women, Darling says.