CHA Accepts Contraception 'Accommodation'

HHS mandate accommodation accepted by CHA

The Catholic Health Association and the U.S. bishops have parted ways over the final wording of a Department of Health and Human Services exemption and accommodation for religious employers related to its mandate for contraception coverage in new health insurance packages.

Michael Sean Winters at National Catholic Reporter released a copy of a memorandum issued yesterday afternoon by CHA to its membership (confirmed by a copy of same e-mailed to this office this morning), explaining the organization’s reasons for coming to terms with the final language of the accommodation on contraception coverage offered to objecting religious employees.

Advertisement

According to the memorandum: “Since the original [HHS] rule was issued over a year ago, there has been considerable concern raised by many parties including CHA. CHA had two principal concerns. The first was the four-part definition of what constituted a ‘religious employer.’ That concern has been eliminated. CHA’s second concern was establishing a federal precedent that mandated our members would have to include in their health plans services they had well-established moral objections to. HHS has now established an accommodation that will allow our ministries to continue offering health insurance plans for their employees as they have always done.”

Throughout the protracted effort to nail down the language on exemptions and accommodations to religious employers who objected to the mandate the “CHA has been in dialogue with the leadership of the Bishops’ Conference, the Administration and HHS,” according to its memorandum. “We are pleased that our members now have an accommodation that will not require them to contract, provide, pay or refer for contraceptive coverage.

“We also recognize that this resolution has not been what some organizations, including the Bishops’ Conference, asked for on behalf of a wider group. Our contribution to the process has been to work for the protection of religious organizations, especially our members. We recognize the broader issues will continue to be debated and litigated by others.”

Sister Mary Ann Walsh, spokesperson for the bishops' conference, said the U.S. bishops did not contribute to the CHA analysis of the accommodation language or to its statement yesterday. She said there was “no way to predict” if the CHA decision would lead to a falling out between the bishops and the CHA, but that “no one” was seeking to contribute to a rupture like the one that followed the CHA’s decision to endorse health care reform over the bishops’ objections in 2010.

Sister Walsh said the bishops were still studying the accommodation language, noting that the “the bishops have very broad concerns. They have concerns related to the entire church, and they have to bring those concerns to the discussion.”

UPDATED: Sister Carol Keehan, President and CEO of the CHA, said, “I don’t see our decision about the mandate as any kind of a break with the bishops. It’s simply they have a very, very wide, broad set of issues; we had a very narrow issue.” CHA's focus was on how to get the mandate challange resolved for its hospital members "as best we could without compromising our principles.

"We didn’t see it as a break; we saw it as contribution to resolving the overall issue."

On July 3, the U.S. bishops rejected the same final accommodation language offered by the Obama administration on its Affordable Care Act mandate on women’s preventive services, which now requires that contraception, including sterilization and the availability of drugs some regard as abortifacients, be included free of co-pays or other charges in new health insurance plans. In a statement signed by U.S. Conference of Catholic Bishops President Cardinal Timothy Dolan, Archbishop of New York, the conference said the final ruling does not appear to eliminate "the need to continue defending our rights in Congress and the courts."

The bishops continued to express concerns about the mandate concerning its “narrow” definition of "religious employers" that are exempted and the fact that businesses run by individuals who may object to the coverage are not considered at all for exemption or accommodation. The bishops continued to express reservations about the accommodation offered to religious institutional employers and those religious employers that are self-insured. The HHS ruling seeks to remove such objecting institutions from any role in the provision of contraception services through third-party processing and by throwing the responsibility for administering and paying for such services on to insurance providers.

According to the final HHS ruling issued June 28, a religious emplyer exempt from the mandate completely is an organization that is referred to in Section 6033(a)(3)(A)(i) and (iii) of the Internal Revenue Code, which describes those entities that are exempt from filing a Form 990. This includes churches, their integrated auxiliaries and conventions or associations of churches, as well as the exclusively religious activities of any religious order.

The final rules define an “eligible organization” for purposes of the accommodation as an organization that meets all of the following criteria:

• The organization opposes providing coverage for some or all of the contraceptive services required to be covered under the ACA on account of religious objections.

• The organization is organized and operates as a nonprofit entity.

• The organization holds itself out as a religious organization.

• The organization self-certifies that it satisfies the first three criteria. 

After a year and a half of wrangling over the accomdation's language, the CHA has pronounced itself satisfied with the procedures offered by HHS. In a addendum on the process, the CHA attempts to explain to its members how the accommodation with practically work:

For eligible organizations that have insured plans, the first step will be to have an authorized individual execute a self-certification in the form specified by HHS prior to the first day of its first plan year beginning on or after January 1, 2014. All that will be asked on the form is for the organization to confirm that it satisfies the first three criteria of the “eligible organization” definition. The form does not have to be filed with any governmental agency, but does have to be maintained under the record retention requirements of ERISA and be made available for inspection on request.

The second step is for the organization to present the self-certification to its insurer. Once that is done, the eligible organization has no further obligations regarding contraceptive coverage, even if the insurer does not satisfy the requirements regarding contraceptive coverage imposed on it by the final regulations. Upon receiving the self-certification, the insurer is required by the federal government to assume sole responsibility, independent of the eligible organization and its plan, to pay for contraceptive services without cost-sharing, premium, fee, or other charge to plan participants and beneficiaries. One change from the proposed rules in this area is that under the final rules, the insurer will not issue the participants a separate contraceptive policy. Instead, the insurer must notify the participants (separately from any application or other materials distributed with regard to enrollment in the insured group health plan) that it will make payment for contraceptive services. The insurer is required to segregate premium payments made by eligible organizations and to pay for contraceptive services from other funds.

The plan issued to the eligible organization must specifically exclude coverage of contraceptive services.In addition, the rules require the insurer to ensure that such coverage is not reflected in the group health insurance premium, and that no fee or other charge in connection with such coverage is imposed on the eligible organization or its plan. In other words, the eligible organization will continue to purchase insurance without contraceptive coverage just as it did prior to ACA.

A similar process applies to self-insured entities which would pass on any role regarding the contraception mandate to its third party insurance administrator (TPA). According to the CHA memo:

"[T]he TPA will then decide whether it chooses to become the plan administrator and claims administrator under ERISA for the contraceptive services. There is no legal requirement that a TPA accept this role. However, because the TPA will receive an allowance for administrative costs plus a margin, it will have an incentive to do so. If the TPA does agree to this role, it would then have the legal obligation to provide or arrange for separate payments for contraceptive services for plan participants and beneficiaries without cost. It also would be responsible for notifying participants (separately from any application or other materials distributed with regard to enrollment in the insured group health plan) of the availability of separate payments for contraceptive services. The TPA must ensure that no fee or other charge in connection with such services is imposed on the eligible organization or its plan. 

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
Vince Killoran
5 years ago
Bravo for the CHA's perspective! One of the many things I can not understand about the USCCB is that they usually respond HHS guidelines by stating their opposition--and that they are "still studying the policy language." Is it just that their default position is to reject all policy language related to women's right to contraceptive coverage and then fill in their reasons once they have actually read the policy?
David Pasinski
5 years ago
The bishops should require employees to produce a marriage license both to assure that they are not cohabiting and that this is their only marriage. Otherwise, in offering employment and benefits, they are materially cooperating in immorality. Let's follow through, boys!
D M
5 years ago
Catholic churches, schools, etc. have tried to enact certain moral clauses only to turn around and be sued by these dishonest employees when the truth comes out and they get fired.
Joshua DeCuir
5 years ago
"women's right to contraceptive coverage" What, pray tell, is this, and exactly what is it's source? A "right" to use contraception, I would acknowledge. But a "right" to have insurance coverage for it?
Vince Killoran
5 years ago
The right comes from the fact that the use of contraception by women is legal, used widely, and has long been part of most health insurance policies (as are vasectomies). Health care providers agree that is is a key means for women to control their reproduction and that their continued good health often necessitates its use. To eliminate this routine coverage, would be to discriminate against women.
Joshua DeCuir
5 years ago
"Health care providers agree that is is a key means for women to control their reproduction and that their continued good health often necessitates its use." That may be so, but that there is somehow a "right" to insurance coverage is an unusual claim. Is this a legal right? A moral right? Furthermore, if the purpose of insurance is spreading catastrophic risks among a larger group of people, wouldn't the fact that contraception is, as you rightly state, "legal, used widely, and has long been part of most health insurance policies" mean that its probably not that difficult to get? Why is the fact that a very small group of employers who do not offer a particular type of coverage somehow a threat to this "right"? Or is there, in your view, a shortage in American society of cheap contraception?
Tim O'Leary
5 years ago
Vince - in your view, is there a similar right to government funded abortions if contraception does not work, since it is legal, used widely, has been part of some health insurance policies and some health care providers affirm it is a key means for women to control their reproduction and that their continued good health often necessitates its use?
D M
5 years ago
"good health" often necessistates use of a Group 1 carcinogen (WHO) ? If Obamacare really cared about women's health why not offer free meds for breast cancer, ovarian cancer?
Robert Klahn
5 years ago
Not a bad idea at all.
Vince Killoran
5 years ago
p.s. In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn't provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. In ERICKSON V. BARTELL DRUG CO. (2001) a federal court agreed with the EEOC's reasoning.
Tim O'Leary
5 years ago
Josh - I imagine that the right to contraceptive coverage must also come with a right to a sexual partner, because the former is futile without the latter. Maybe, the Obama government will soon come out with a way to pay for that. I suppose they could mandate a government "dating" website (HHS partner = his and her sex partner).
Rick Fueyo
5 years ago
It is axiomatic under the law that every right must have a remedy.
Tim O'Leary
5 years ago
Rick - is it your contention that this right to be paid for contraception has always existed, or just arrived recently? Is it inherent in the human being (like life, freedom of religion, etc) or arbitrary? Can human rights just spring into existence, or are they invented to advance an ideology? Once invented, are they eviternal?
Michael Barberi
5 years ago
I think the contraceptive mandate ended up where most people thought it would. The Federal Government will be responsible for funding the costs incurred by insurance companies and TPAs for providing and administering the contraceptive mandate by reducing their insurance exchange fees. That might be another issue in the future, but the nonprofit religious employer is out of the loop on this potential problem. This issue was always about the constitutionality of the mandate for non-profit religious organizations. The decision to use contraceptive products for birth control will continue to be a personal decision of conscience for Catholics as it has been. Catholic organizations will not be directly or materially cooperating with evil because they will not be required to cover contraceptive products and services in their health plans, nor will they have to pay for the cost of such coverage. Nevertheless, coverage for contraceptive products and services will be available without cost to the employees of religious organizations and without cost to religious employers under ObamaCare.
Marie Rehbein
5 years ago
Hi, guys. Do you know if the contraceptives in question are diaphrams, spermicides, and condoms? If this applies only to chemical contraceptives (i.e. the pill), it could be argued that depriving women coverage for the prescription of hormonal contraceptives to treat medical conditions particular to women because often these same products are used as contraceptives is completely nonsensical. I do recall encountering this exact scenario when I was younger and needed the pill for dysmenorrhea and found out that my insurance with prescription coverage would not cover it because it was a contraceptive. I am happy that this will no longer be the case.
Tim O'Leary
5 years ago
Marie - although nothing is completely clear with ObamaCare's thousands of pages and HHS interpretative regulations, it appears it covers your mentioned items (though maybe, only female condoms - see here from Kaiser Health http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx), plus IUDs (which prevent implantation), Morning-after pills, Plan B, etc. And unlike most other life-saving medicine, which has a basic copay, contraceptives have no copay. However, I guess if you are prescribed it for a non-contraceptive indication, you might have a copay.
Michael Barberi
5 years ago
Marie, At the present time, prescription drugs and covered contraceptive products are covered by health and/or drug plans as long as they are medically necessary. This often means that a physician writes for it. Under ObamaCare, any contraceptive products and services that are classified as covered will likely carry no copay or cost. Most prescriptions, including contraceptives, that are written by physicians on Rx pads don't require a diagnosis such as for birth control or pain. To administer a plan that varies the copay by diagnosis is complex and can easily be manipulated since an Rx for pain or birth control is medically necessary and no one is going to challenge the billions of prescriptions written with plausible reasons. Of course, until the regulations are issued we will not know for certain.
Robert Klahn
5 years ago
You have pushed this to the point where you demonstrate your inability to consider this reasonably.

Advertisement

The latest from america

A couple gets married in Stockholm, Sweden, in this 2013 file photo. (CNS photo/Fredrik Sandberg, EPA) 
“The right of Catholics to express disagreement with their leaders is a right as old as Peter and Paul.”
The EditorsJuly 16, 2018
A woman who told police that she and her family were from Sudan is taken into custody by a Royal Canadian Mounted Police officer after arriving in February 2017 by taxi and walking across the U.S.-Canada border into Quebec. (CNS photo/Christinne Muschi, Reuters)
Canada is not innocent when it comes to immigration policies that have the potential to hurt individuals and divide families.
Dean DettloffJuly 13, 2018
In this June 6, 2018, photo, President Donald Trump's Chief of Staff John Kelly attends a briefing on this year's hurricane season at the Federal Emergency Management Agency Headquarters in Washington. (AP Photo/Andrew Harnik)
The private letter, sent more than a year ago, may have had changed Mr. Kelly’s mind for a time.
J.D. Long-GarcíaJuly 13, 2018
May the best team win. Actually, may Croatia win, argues Travis Timmons.
Travis Timmons July 13, 2018