August 22, 2014

Obama administration announces new HHS mandate rules

The Department of Health and Human Services issued on Friday new rules regarding its contraception mandate, which address both non-profits and closely held for-profit entities.

Sylvia Burwell, HHS secretary, said Aug. 22 that the new rules will ensure access to free contraception, “while respecting religious considerations raised by non-profit organizations and closely held for-profit companies.”

The HHS department has issued a mandate under the 2010 Affordable Care Act which requires employers to offer health insurance covering contraception, sterilization and some drugs that can cause early abortions.

It has been particular burden for Catholics and others with pro-life religious and moral convictions. Non-compliance with the mandate is punished by severe fines.

While the mandate includes a narrow religious exemption for houses of worship, non-profit organizations had been offered an “accommodation,” under which a religious employer would sign a form authorizing another company or third party to provide payments for the products they find objectionable.

The new rules announced Friday “are in response to recent court decisions,” the HHS stated.

For non-profits, the newly issued rules “lay out an additional way for organizations eligible for an accommodation to provide notice of their religious objection to providing coverage for contraceptive services,” the Health and Human Services department stated Aug. 22.

“The rule allows these eligible organizations to notify the Department of Health and Human Services in writing of their religious objection to providing contraception coverage. HHS and the Department of Labor will then notify insurers and third party administrators so that enrollees in plans of such organizations receive separate coverage for contraceptive services, with no additional cost to the enrollee or the employer.”

“The interim final rule solicits comments, but goes into effect upon publication.”

Regarding closely held for-profits, such as Hobby Lobby, the HHS said it is “issuing a proposed rule soliciting comments on how it might extend” to them “the same accommodation that is available to non-profit religious organizations.”

“Under the proposal, these companies would not have to contract, arrange, pay or refer for contraceptive coverage to which they object on religious grounds. The proposal seeks comment on how to define a closely held for-profit company and whether other steps might be appropriate to implement this policy.”

On June 30, the Supreme Court ruled that closely held for-profit corporations – such as Hobby Lobby and Conestoga Wood Services – are protected against the mandate by the 1993 Religious Freedom Restoration Act.

The two closely-held businesses, run by Protestant and Mennonite owners, objected to aspects of the HHS rule that require them to provide coverage for drugs that they believe can cause abortions.

The ruling quickly led to the introduction in the Senate of a bill aiming to thwart the Supreme Court's decision, co-sponsored by Sen. Patty Murray (D-Wash.) and Sen. Mark Udall (D-Colo.).

The HHS department's Aug. 22 release noted that the Obama administration “continues to encourage Congress to act to ensure that women affected by the Supreme Court’s Hobby Lobby decision have access to the same coverage options offered to others.”

At least 100 lawsuits filed by more than 300 plaintiffs have challenged the constitutionality of the HHS mandate. In the wake of the Hobby Lobby ruling, the closely-held entity Mersino Management Company won an injunction against the mandate from the Sixth Circuit Appeals Court, and the Supreme Court granted a similar injunction to Wheaton College, a Protestant liberal arts college in Illinois.