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Protection of Conscience Project

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Service, not Servitude
Legal Commentary

Title 45: Public Welfare [Full text]

Introduction:

The Obama administration has decided that, as a matter of public policy, individual women should not have to pay for "FDA approved contraceptive services," which include surgical sterilization, contraceptives, and embryocides.  The reasons offered for this policy are mainly economic and socio-political. 

Since sterilization and birth control have to be paid for by someone, the administration intends to force others to pay for them through insurance plans, even if they object to doing so for reasons of conscience or religion.

This regulation was written by the U.S. Department of Health and Human Services for this purpose.  It is authorized by changes in the United States Code made by Section 1001 of the Patient Protection and Affordable Care Act, the American health care reform law passed in 2010.

The regulation requires all group health care plans (the kind of plan usually offered by businesses or oganizations) to offer coverage and fully pay for "preventive services"identified in Section 147.130 (reproduced below, in part).  Businesses with 50 or more employees must offer such coverage by 2014, or face penalties.1  Health insurance issuers (like insurance companies) must also make available group and individual plans that fully pay for "preventive services."

 Most of the services are not identified in the regulation.  They are itemized in separate recommendations and guidelines.

What follows is the part of the regulation (as amended in June, 2013) that is related to the demand by the Department of Health and Human Services that employers must pay for insurance coverage for surgical sterilization, contraceptives and embryocides.2  Key terms are highlighted, links have been added for the convenience of readers, and annotations are provided in text boxes to the right.

- Administrator

PART 147-HEALTH INSURANCE REFORM REQUIREMENTS FOR THE GROUP AND INDIVIDUAL HEALTH INSURANCE MARKETS

§ 147.130 Coverage of preventive health services.
(a) Services -(1) In general.

Beginning at the time described in paragraph (b) of this section, a group health plan, or a health insurance issuer offering group or individual health insurance coverage, must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services:

(i) essentially repeats  §300gg-13(a)(1) in the statute.

(i) Evidence-based items or services that have in effect a rating of A or B in the current recommendations of the United States Preventive Services Task Force with respect to the individual involved (except as otherwise provided in paragraph (c) of this section);

(ii) is drawn from §300gg-13(a)(2) in the statute, and explains how recommendations will be identified.

(ii) Immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved (for this purpose, a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention is considered in effect after it has been adopted by the Director of the Centers for Disease Control and Prevention, and a recommendation is considered to be for routine use if it is listed on the Immunization Schedules of the Centers for Disease Control and Prevention);

(iii) With respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration; and

Subsection (iv) refers to legal guidelines that set out required "preventive care and screenings".  The meaning and effect of the regulation depends upon those guidelines.

(iv) With respect to women, to the extent not described in paragraph (a)(1)(i) of this section, preventive care and screenings provided for in binding comprehensive health plan coverage guidelines supported by the Health Resources and Services Administration.

(A) Note the word "may."  There is no requirement to provide an exemption, and any exemption provided can be revised or revoked by the Department.  "Contraceptive services" are defined in legal guidelines, not in this regulation. 

(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(1)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines.
§ 147.131 Exemption and accommodations in connection with coverage of preventive health services.
(a) Religious employers.

In issuing guidelines under § 147.130(a)(1)(iv), the Health Resources and Services Administration mayNote the word "may."  There is no requirement to provide an exemption, and any exemption provided can be revised or revoked by the Department.  "Contraceptive services" are defined in legal guidelines, not in this regulation.  establish an exemption from such guidelines with respect to a group health plan established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer) with respect to any requirement to cover  contraceptive servicesThe term "contraceptives," as it is used in the guidelines (and, thus, the regulation) includes sterilization and drugs and devices that may cause the death of a human embryo before implantation ("embryocide"). under such
guidelines. For purposes of this paragraph (a), a "religious employer" is an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended.The definitions in the IRC Code are narrow and well-established: entities like churches, houses of worship, religious orders. For this reason, the proposed amendment does not substantially change the definition of religious employer, though it does appear to extend the exemption to include religious orders. Under the current regulation, Catholic religious orders, for example, are required to provide the defined services.

(b) Eligible organizations.

An eligible organizationIndividual citizens are not exempt. is an organization that satisfies all of the following requirements:

(1) The organization opposes providing coverage for some or all of any contraceptive
services required to be covered under §147.130(a)(1)(iv) on account of religiousThis does not appear to include conscientious objections that do not have a religious basis. This is consistent with the U.S. First Amendment, which refers to the free exercise of religion, not the free exercise of conscience. The proposed regulation appears to be based on a narrow reading of the American Constitution. objections.

(2) The organization is organized and operates as a nonprofit entityBusinesses are not exempt..

(3) The organization holds itself out as a religiousThis does not appear to include conscientious objections that do not have a religious basis. This is consistent with the U.S. First Amendment, which refers to the free exercise of religion, not the free exercise of conscience. The proposed regulation appears to be based on a narrow reading of the American Constitution. organization.

(4) The organization self-certifies,A record must be kept of the services to which the organization objects. in a form and manner specified by the Secretary, that it
satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such
self-certification available for examination upon request by the first day of the first plan year to
which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.

(c) Contraceptive coverage - insured group health plan coverage.

(1) General rule. A group health plan established or maintained by an eligible organization that provides benefits through one or more group health insurance issuers complies for one or more plan years with any requirement under § 147.130(a)(1)(iv) to provide contraceptive coverage if the eligible organization or group health plan furnishesThe organization must notify its insurance provider of its objections. a copy of the self-certification described in paragraph (b)(4) of this section to each issuer that would otherwise provide such coverage in connection with the group health plan. An issuer may not require any documentation other than the copy of the self-certification from the eligible organization regarding its status as such.

(2) Payments for contraceptive services--(i) A group health insurance issuer that receives
a copy of the self-certification described in paragraph (b)(4) of this section with respect to a
group health plan established or maintained by an eligible organization in connection with which
the issuer would otherwise provide contraceptive coverage under § 147.130(a)(1)(iv) must -

(A) Expressly exclude contraceptive coverage from the group health insurance coverage
provided in connection with the group health plan; and

(B) Provide separate payments for any contraceptive services required to be covered
under § 147.130(a)(1)(iv) for plan participants and beneficiaries for so long as they remain enrolled in the plan.

(ii) With respect to payments for contraceptive services, the issuer may not impose any cost sharing requirementsThe health insurance company must bear all costs, including the cost of contraceptive sterilization, which can be expensive. It is not clear how they can be prevented from passing on the costs to the objecting organization, or if the government will allow them to deduct the costs from their taxes.  (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible
organization, the group health plan, or plan participants or beneficiaries. The issuer must
segregate premium revenue collected from the eligible organization from the monies used to
provide payments for contraceptive services. The issuer must provide payments for
contraceptive services in a manner that is consistent with the requirements under sections 2706, 2709, 2711, 2713, 2719, and 2719A of the PHS Act. If the group health plan of the eligible organization provides coverage for some but not all of any contraceptive services required to be covered under § 147.130(a)(1)(iv), the issuer is required to provide payments only for those contraceptive services for which the group health plan does not provide coverage. However, the issuer may provide payments for all contraceptive services, at the issuer's option.

(d) Notice of availability of contraceptive coverage for contraceptive services-- insured group health plans and student health insurance coverage.

 For each plan year to which the accommodation in paragraph (c) of this section is to apply, an  issuerThe insurance provider, not the objecting organization, must notify beneficiaries. required to provide payments for contraceptive services pursuant to paragraph (c) of this section must provide to plan participants and beneficiaries written notice of the availability of separate payments for contraceptive services contemporaneous with (to the extent possible), but separate from, any application materials distributed in connection with enrollment (or re-enrollment) in group health coverage that is effective beginning on the first day of each applicable plan year. The notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the issuer provides separate payments for contraceptive services, and must provide contact information for questions and complaints. The following model language, or substantially similar language, may be used to satisfy the notice requirement of this paragraph (d):

"Your [employer/institution of higher education] has certified that your [group health plan/student health insurance coverage] qualifies for an accommodation with respect to the federal requirement to cover all Food and Drug Administration-approved contraceptive services for women, as prescribed by a health care provider, without cost sharing. This means that your [employer/institution of higher education] will not contract, arrange, pay, or refer for contraceptive coverage. Instead, [name of health insurance issuer] will provide separate
payments for contraceptive services that you use, without cost sharing and at no other cost, for so long as you are enrolled in your [group health plan/student health insurance coverage]. Your [employer/institution of higher education] will not administer or fund these payments. If you have any questions about this notice, contact [contact information for health insurance issuer]."

(e) Reliance

(1) If an issuer relies reasonably and in good faith on a representation by the eligible organization as to its eligibility for the accommodation in paragraph (c) of this section, and the representation is later determined to be incorrect, the issuer is considered to comply with any requirement under § 147.130(a)(1)(iv) to provide contraceptive coverage if the issuer complies with the obligations under this section applicable to such issuer.

(2) A group health plan is considered to comply with any requirement under § 147.130(a)(1)(iv) to provide contraceptive coverage if the plan complies with its obligations under paragraph (c) of this section, without regard to whether the issuer complies with the obligations under this section applicable to such issuer.

(f) Application to student health insurance coverage.

The provisions of this section apply to student health insurance coverage arranged by an eligible organization that is an institution of higher educationPost-secondary institutions.  in a manner comparable to that in which they apply to group health insurance coverage provided in connection with a group health plan established or maintained by an eligible organization that is an employer. In applying this section in the case of student health insurance coverage, a reference to "plan participants and beneficiaries" is a reference to student enrollees and their covered dependents.


Notes
Provided by the Protection of Conscience Project

1.  "The New Health Care Reform Law:  How Will it Affect Non-Profit Employers?"  The Arc, National Policy Matters, Issue #9, July 15, 2012.

2.  The term "contraceptives," as it is used in the guidelines (and, thus, the regulation) includes sterilization and drugs and devices that may cause the death of a human embryo before implantation ("embryocide").  For an explanation of this terminology, see Clearing Rhetorical Minefields.

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