An Accommodation to Religious Accommodation

May 20, 2014

Today the various federal agencies responsible for providing guidance on the Affordable Care Act issued proposed rules which just might satisfy the objections of religious employers to ACA’s contraception mandate. It seems like every day another lawsuit is filed objecting to ACA’s requirement that contraceptives be included in the list of preventative health services which must be covered first dollar (no co-pay or deductible). That requirement is effective now, but religious organizations were given a one year reprieve due to complaints that the mandate interfered with the free exercise of religion. The proposed rule issued today is supposed to ensure that eligible “religious organizations” (think churches) and “nonprofit religious organizations” (a nonprofit which holds itself out as a “religious” entity) would not be forced to “contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.”

So how will that be done, while still providing access to contraceptive coverage first dollar to women who work for these institutions? Well, by forcing insurers of group health plans to provide separate, individual market contraceptive coverage at no cost for plan participants. In effect, the contraceptive coverage will be broken off from the group insurance policy and provided under a separate, stand along individual policy which is “free” and doesn’t involve the religious employer’s involvement. For self-funded group health plans, the TPA is supposed to work with a health insurer to obtain this insured contraceptive coverage.

Will this work? I guess if this rather technical work around satisfies the objecting religious organizations that they won’t be providing or paying for contraceptive coverage (since it will be free and under an individual policy), then maybe it will. But if the real basis for the objection is that the employees have access to contraceptive coverage (no matter who pays for it), then presumably some organizations will see this “accommodation” as anything but.

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