Birth control benefits: The feds try again

By February 1, 2013 • Reprints
Federal agencies want to let more nonprofit employers get out of
paying for birth control benefits, but the workers would still receive
“first dollar” coverage for birth control.

“For-profit, secular employers” could not qualify for an exemption from the birth control benefits mandate.

The agencies — the Internal Revenue Service (IRS), an arm of the
U.S. Treasury Department; the Employee Benefits Security Administration
(EBSA), an arm of the U.S. Labor Department; and the U.S. Department of
Health and Human Services (HHS) — have described their latest approach
to the mandate in a new batch of proposed rules, “Coverage of Certain Preventive Services Under the Affordable Care Act” (CMS-9968-P) (RIN 00938-AR42).

“Religious accommodations in related areas of federal law, such as
the exemption for religious organizations under Title VII of the Civil
Rights Act of 1964, are available to nonprofit religious organizations
but not to for-profit secular organizations,” officials at the agencies
said in the preamble to the proposed regulations. “Accordingly, the
departments believe it would be appropriate to define eligible organization to include nonprofit religious organizations, but not to include for-profit secular organizations.”

The agencies are simplifying a definition of “religious employer”
that was included in an earlier final rule. Originally, a fully exempt
employer included houses of worship and religious convocations.
Those religious employers had to have the purpose of “inculcating
religious values,” primarily employ people sharing its tenets, primarily
serve people who share its religion, and be a nonprofit employer.

In the latest version, the agencies would change the definition to
refer to nonprofit employers that simply meet the IRS definition of a
religious employer.

The agencies hope the change will “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,” officials said.

“The departments agree that the exemption should not exclude group
health plans of religious entities that would qualify for the exemption
but for the fact that, for example, they provide charitable social
services to persons of different religious faiths or employ persons of
different religious faiths when running a parochial school,” officials
said.

The definition that the agencies are proposing would eliminate the need to ask about an employer’s purposes or the religious beliefs of its employees or the people the employer serves, officials said.

The agencies also would define a second category of nonprofit
employers — “eligible organizations,” such as schools and hospitals
organized under religious auspices. When those employers offer health
plans, the insurer or administrator of the plan, not the employer
sponsor, would provide and pay for birth control benefits, officials
said.

The workers in the plans of nonprofit “eligible organization”
employers would still get the same kinds of other birth control benefits
that workers in most other plans get, officials said.

The agencies developed the draft regulations in an effort to implement preventive services coverage requirements in the Patient Protection and Affordable Care Act of 2010 (PPACA).

The draft regulations are set to appear in the Federal Register
Wednesday. Comments would be due 60 days after the official publication
date.