One component of the Patient Protection and Affordable Care Act that has been hotly contested is the provision of birth control expenses and its impact on religious-affiliated groups opposed to contraception. New proposed rules and a fact sheet have been issued that are apparently an effort to quell some of the debate.
The new regulations propose to have insurers who sell the coverage to pick up the cost of the contraceptives. Now, there is a proposal that applies to religious institutions that self-insure which obligates the administrator of the plan to find a policy that would cover contraceptives.
The insurer would be compensated for that coverage through a reduction in the fees it pays to the state-based marketplaces, or exchanges, being established to provide coverage to individuals and small businesses. Under the proposed rule, women employed by nonprofit religious organizations opposed to contraceptives, such as Catholic hospitals or colleges and student health plans, are entitled to get contraceptive services and products without a co-payment. Since the organization is not required to bear the cost of the service, the insurer of the organization has to notify workers that it will provide the coverage through separate individual health insurance policies.
For self-insured plans, the administrator of the plan (typically an insurance company) would provide a separate individual policy and then offset the costs of those policies through an “adjustment” in the fees that will be charged to insurers participating in the health marketplaces. Of course this does not explain what will happen if the plan is administered through an entity that is not an insurer and there is also no explanation about what will happen when those in the marketplace bearing the additional cost start complaining about paying extra to subsidize the cost of contraceptive coverage.
All in all, it is fairly clear that the Supreme Court will ultimately have to sort out this contraceptive issue. While the proposed regulations may appear to have implemented some type of fix, it may prove to be illusory and unworkable when practical market realities intrude.
Keith R. McMurdy focuses on labor and employment issues at Fox Rothschild. He can be reached at kmcmurdy@foxrothschild.com or 212-878-7919.
This alert is intended for general information and should not be taken as specific legal advice.
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3 Comments
Posted by: Cathy L | February 11, 2013 11:59 AM
First of all, insurance was NEVER meant to be the means to cover any and all visits to the doctor! Second of all, the cost of contraception is very small or zero! So, tell me why you think that someone else should pick up the cost of contraceptives for another person, where the cost is next to nothing? People that presume providing items for 'free' that think these items really have no cost, are not using the brains that God gave them. There is nothing free in this world! It costs someone!And, those that are implying in some fashion that people that do not want to provide this coverage are somehow 'infringing' on the rights of others, that is NOT what they are doing! They are not telling these women they CANNOT have it, they are telling them they should NOT be forced to pay for it! There is a difference... and that difference is HUGE! In addition to that, you obviously do not know MUCH about contraceptive coverage in this country prior to this, because MOST insurance companies did not cover them.
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Posted by: HR Software Consultant | February 8, 2013 12:06 PM
I think that by not allowing them to be covered under insurance, they are infringing their beliefs on others, which is what they are griping is happening to them. Let's change tactics for a moment. Let's suppose that you have a medical condition that requires you to follow a gluten free diet. Do you force your grocery stores to not carry products with gluten in them so they can have your business? No, you don't. You simply choose not to purchase those products and go on with your life. Same for the contraceptive coverage. If it's against your beliefs, then simply don't purchase them or get a prescription for them. You don't get to deny someone else things based on your own beliefs. Even if you think that by working for you they have to agree with all of your beliefs -- they don't.
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Posted by: Focusben | February 8, 2013 8:38 AM
It seems it would have been better to have left the health insurance systems more intact and just require coverage but not try to dictate all aspects of the contract. The problem was always cost of "health care" and insurance cost was merely the symptom. Starting with the coverage and dictating minutia and cost was pre ordained to hit this wall. First it was obvious the religious issue had to surface and amending to that issue opens a Pandoras box of other potential litigation. Is a non religious employee now being discriminated against? Are non relgious employers being discriminated against? Next, If we do not have to cover contraception are there not other requirements we can address just because it goes against our belief, or fiancial self interest. Should an employer not be allowed to refuse employment and medical coverage to the clinically obese? If an employee is found to be eating red meat and they work for a vegan organization can they be fired or their medical coverage rescinded?Medical insurance coverage does not require anybody to seek nor accept coverage, it merely agrees to pay for services outlined in the agreement between the insurance company and the insured. In past years coverage could be contractually elliminated from specific agreements. The impact of that was then an issue between the employees and the employer. If you attmepted to arrange coverage for a large religious organization there were several issues quietly discussed, and frequently amemeded. Attempting to dictate all content of contractual agreements on a universal basis can only create the morass we now face. Eventully it goes to the essence a free society.Bill Weaver
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