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HHS proposes birth control mandate compromise

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The U.S. Department of Health and Human Services (HHS) wants to let some nonprofit religious employers avoid paying for birth control benefits but help those employers’ workers get birth control coverage through a different channel.

A new HHS interim final rule would let eligible nonprofit employers with religious ties, such as schools and hospitals, avoid paying for birth control benefits. HHS would make free access to birth control benefits available to those employers’ workers by having HHS contact the insurer — or by having the U.S. Department of Labor contact the administrator of a self-insured plan — and having the insurer or the benefit plan administrator provide separate birth control coverage for the workers at no cost to the workers.

HHS also is posting a proposed regulation seeking advice on how to make a similar accommodation available to closely held for-profit companies.

The Employee Benefits Security Administration (EBSA), an arm of the U.S. Department of Labor, and the Internal Revenue Service (IRS), an arm of the U.S. Treasury Department, are joining with HHS to issue the interim rule and the proposed rule.

Sylvia Burwell, the new HHS secretary, said in a statement that the regulatory moves show regulators are taking employers’ religious concerns into account.

“Today’s announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by non-profit organizations and closely held for-profit companies,” Burwell said.

Arina Grossu, a representative for the Family Research Council, a group that opposes the mandate, said employers that refuse to use the compromise arrangement would continue to face the threat of having to pay crippling fines for failing to meet the HHS preventive services benefits requirements.

She called exempting the employer from having to pay for birth control benefits while still offering the employer’s health plan enrollees free access to birth control coverage “an insulting accounting gimmick.” “The employer still remains the legal gateway by which these drugs and services will be provided to their employees,” Grossu said.

HHS created the birth control mandate when it developed the list of services in the basic preventive services benefits package required by the Patient Protection and Affordable Care Act of 2010 (PPACA). HHS already exempts some nonprofit religious organizations, such as houses of worship, from the birth control coverage mandate.

HHS has been trying to come up with another approach for nonprofit hospitals with religious ties, nonprofit schools with religious ties, and other nonprofit employers with religious affiliations. For those employers, HHS has been trying to make birth control benefits available to the workers without requiring the employers to provide the benefits.

Earlier this year, in a decision on a case involving Hobby Lobby, the Supreme Court knocked down HHS efforts to apply the birth control benefits mandate to closely held for-profit employers. The court held that HHS had violated a federal law protecting the religious rights of corporations by failing to make any effort to accommodate the employers’ religious principles.

A few days later, the court issued a temporary ruling on an open case involving Wheaton College, a nonprofit Christian college that opposes the birth control mandate.

Wheaton could have used an earlier compromise arrangement that would have let it avoid paying for birth control benefits while letting its workers get birth control benefits directly from their insurer or benefit plan administrator. The Supreme Court told Wheaton that, while its case is pending, it can avoid using the compromise arrangement by simply telling HHS it objects to the preventive services mandate.

HHS said it came up with the new interim final regulations and the draft regulations in response to the court decisions.

In a regulatory impact review notice, HHS said it expects the interim final regulations for nonprofit employers with objections to the birth control mandate to apply to 122 employers.