HHS Issues Alteration To ACA Contraceptive Mandate Accommodation Rule

WASHINGTON, D.C. — (Mealey’s) Eligible employers opposed to Patient Protection and Affordable Care Act (ACA) provisions mandating insurance coverage for contraceptives may notify the U.S. Department of Health and Human Services (HHS), which will in turn notify the employer’s insurer under a new rule issued by the government Aug. 22. 

(This story is an excerpt from Mealey's Affordable Care Act Report.  For information on how to subscribe to this new monthly report, please contact your LexisNexis account representative or call 800-223-1940.) 

 (New rule available.  Document #93-140930-005X.) 

Under the new rule, HHS or the U.S. Department of Labor will notify an objecting employer’s insurer or third-party administrator (TPA), which would then be responsible for providing the insurance coverage at no cost to the employee. 

Previously, an employer needed to submit a form to its insurer or TPA, which was then required to provide the coverage at no cost to the employer. 

Case Law 

The rule change comes in response to ruling in several lawsuits challenging provisions of the ACA requiring coverage for contraceptives and an option for religious employers to “opt out” of providing such coverage.  

The U.S. Supreme Court recently struck down the coverage mandate as it applies to closely held religious corporations in Burwell v. Hobby Lobby Stores, Inc. (134 S. Ct. 2751 [2014]) [lexis.com subscribers may access Supreme Court briefs and an enhanced opinion for this case]. 

In light of Hobby Lobby, the government has asked for comments regarding how to define closely held corporation. 

Responses 

The Becket Fund for Religious Liberty issued a statement on Aug. 22 saying it needed to review the rules before fully commenting on them.  The Becket Fund has filed a number of suits challenging the contraceptive mandate. 

In an Aug. 22  statement, the Family Research Council said the new rule merely “adds absurd clerical layers” to what is an “accounting gimmick” and does not respect the ruling in Hobby Lobby. 

According to The Becket Fund, there are 53 cases challenging the contraceptive mandate brought by nonprofit organizations such as universities, dioceses and charities covering 126 plaintiffs and 49 cases brought by for-profit companies involving 193 plaintiffs.

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