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The HHS Mandate Isn’t Fixed



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The Obama administration today proposed a new rule that will further inflame the debate over the Obamacare mandate requiring employers to provide access to abortion-inducing drugs, contraceptives, and sterilization procedures at no cost to their employees.

While the administration has expanded the definition of institutions that could qualify for a “religious employer exemption,” the “accommodation” is no different than the notice issued last year. The administration still intends to force health-insurance companies to provide the coverage.

The original notice of proposed rulemaking last year said that houses of worship did not have to comply with the requirement that employers and health plans must provide contraceptives at no cost to their employees if they have religious objections. The new rule expands the definition to cover schools, charities, and other organizations that are not narrowly-defined as houses of worship. But their employees still must have free access to the services. Here is how it works, according to the HHS fact sheet:

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.

And here is how the administration proposes this would work:

The health insurance issuer . . . 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.

This is no change from last year’s “accommodation.” Since health insurers receive their money through premiums paid by policyholders, this is simply money laundering. Ultimately, religious institutions would still pay.

And what about religious institutions that “self insure,” meaning they pay for all health costs themselves and don’t go through an insurer? No remedy there, either:

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 costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay.

In a statement last year about forcing health insurers to pay, Cardinal Timothy Dolan said the “accommodation” solves nothing, since most church-affiliated organizations either are self-insured or purchase coverage from Catholic insurance companies such as Christian Brothers Services and Catholic Mutual Group, which also see the mandate as “morally toxic.”

The 80-page rule says it made two major changes to the rule proposed last year:

First, the proposed rules would amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths.

Second, the proposed rules would establish accommodations for health coverage established or maintained by eligible organizations, or arranged by eligible organizations that are religious institutions of higher education, with religious objections to contraceptive coverage.

HHS received approximately 200,000 comments in response to last year’s notice. The document does not break down the numbers into negative and positive response, but it is clear there were strong objections to the mandate. But there are other comments quoted that align more with administration policy. These commenters “disputed claims that the contraceptive coverage requirement infringes on rights protected by the First Amendment or RFRA, noting that the requirement is neutral and generally applicable. They also explained that the requirement does not substantially burden religious exercise and, in any event, serves compelling governmental interests and is the least restrictive means to achieve those interests.”

The new rule is of no help to private companies, such as Hobby Lobby, which are challenging the HHS mandate in court as a violation of their religious liberty.

The rule was jointly issue by the departments of Treasury, Labor, and HHS. Comments are due in 60 days before the rule becomes final. Bottom line: The HHS rule expands the number of entities eligible for the government’s “non-accommodation.”



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