The U.S. Supreme Court, a group of religious employers, and lawyers for the Obama administration have sketched out a framework for a new class of supplemental birth-control insurance policies.

The court today talked about the new products in a unanimous, anonymous opinion on Zubik et al. v. Burwell et al. (Case Number 14-1418).

The court told Obama administration officials and departments to stop trying to make religious employers actively opt out of providing the birth-control benefits required by the U.S. Department of Health and Human Services (HHS).

Instead, the administration should look into having health insurers offer free birth-control-only coverage to the workers in group health plans that fail to provide birth-control benefits, the court says.

Justice Samuel Alito talked about that idea in March, when the court heard oral arguments on the case.

See also: High Court order on contraceptives hints at possible compromise

The court used the Zubik opinion to address a group of cases brought by religious employers with fully insured health plans and by colleges and universities that offer access to student health benefits.

The Patient Protection and Affordable Care of 2010 (PPACA) requires the HHS secretary to work with the Institute of Medicine and the HHS Health Resources and Services Administration (HRSA) to develop a package of basic preventive services that every non-grandfathered health plan must cover. Plans must cover the preventive services, such as flu shots and checkups, without imposing deductibles, co-payments or other cost-sharing requirements on the patients. The previous HHS secretary, Kathleen Sebelius, added the birth-control benefits mandate to the package by adopting a HRSA recommendation.

HHS lets employers and student health plan sponsors that object to providing birth-control benefits for religious reasons opt out. The department has been trying to require the plan sponsors that opt out to send it notices, so that it can fill in the enrollees’ birth-control coverage gaps.

The religious employers and schools that sued to block that requirement say that, from their perspective, even sending the opt-out notices would make them morally responsible to provide birth-control benefits.

The Supreme Court declined to rule on the merits of the religious employers’ suits. It said the parties should start by working with the lower courts to flesh out the birth-control-benefits-only compromise and see if that will resolve their dispute.

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For in-depth coverage of the opinion from a legal perspective, see Justices Tell Lower Courts to Craft Compromise for Contraceptive Insurance, by Tony Mauro and Marcia Coyle of The National Law Journal. The National Law Journal is part of ALM, the company that now owns LifeHealthPro.com.

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Birth-control-only policies: The specs

Lawyers for HHS, HHS Secretary Sylvia Burwell and other Obama administration plaintiffs say in a separate brief that they would rather leave the current opt-out notice rules as is. But, if the procedures change, religious employers and schools could simply ask health insurers, or the outside third-party administrators (TPAs) that run self-insured employer health plans, for group health coverage that excludes birth-control benefits.

For the insurer or TPA, getting the request for birth-control-benefits-free health coverage could serve as the notice that the enrollees need supplemental birth-control benefits, HHS lawyers say.

The religious employers gave ideas about what the supplemental birth-control-only policies should look like in their own brief: 

  • The government could either require insurers to offer the free supplemental birth-control-only benefits or give them incentives to do so.
  • The basic group health plan policy and the birth-control-benefits policy would be separate.
  • The policies would have separate enrollment processes, insurance cards, payment sources and communication streams.

Some states now use a similar system to help employees get supplemental abortion benefits when group health plans lack abortion benefits, the religious employers say.

The opinion and the parties’ briefs do not include any comments from insurance regulators, insurance companies, insurance trade groups, TPAs or consumer groups about how practical the free birth-control-benefits-only coverage strategy would be for insurers, TPAs or consumers.

In a concurring opinion, written by Justice Sonia Sotomayor and joined by Justice Ruth Bader Ginsburg, Sotomayor and Ginsburg say the new opinion simply gives the parties and courts of appeals a chance to reconsider the parties’ arguments, in light of discussions about the concept of birth-control-only policies.

“Such separate contraceptive-only policies do not currently exist, and the government has laid-out a number of legal and practical obstacles to their creation,” Sotomayor writes. 

If the policies did exist, requiring some people to get them would violate the PPACA goal of giving all health plan enrollees seamless access to coverage for preventive services, Sotomayor writes.

See also: 

Appeals court backs HHS birth-control opt-out notice mandate

Religious objections to PPACA-related mandate get U.S. High Court review

    

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