July 3, 2013

U.S. Bishops Want to Give ‘Careful Analysis” to HHS Final Rules

The final rules issued June 28 by the U.S. Department of Health and Human Services implementing its mandate that employers provide coverage of contraceptives “will require more careful analysis,” New York Cardinal Timothy Dolan said in a statement.

The cardinal, president of the U.S. Conference of Catholic Bishops, said the 110-page ruling is “long and complex” and the bishops will “provide a fuller statement when that analysis is complete.”

The HHS final ruling updates proposed rules the department had issued in February. It had left the rules open for comment through April and received more than 400,000 comments.

The HHS contraceptive mandate, part of the Affordable Care Act, will require most employers, including religious employers, to provide coverage of contraceptives, sterilization and some abortion-inducing drugs free of charge, even if the employer is morally opposed to such services. It includes an exemption for some religious employers that fit its criteria.

Cardinal Dolan said June 28 that he appreciated the “five-month extension on implementing the complex proposal,” meaning the government extended its “safe harbor” period to Jan. 1, 2014, protecting employers from immediate government action against them if they fail to comply with the mandate. Before the final rules were released, that period was to end Aug. 1 of this year.

The administration’s final rules also include a separate accommodation for nonprofit religious organizations —including charities, hospitals and universities — that will not have to “contract, arrange, pay, or refer for contraceptive coverage” that they object to on religious grounds.

To qualify for the accommodation, organizations must be certified as nonprofit religious group with religious objections to contraceptive coverage. These organizations must provide their health insurance companies with proof of their self-certification, and insurance companies in turn would notify women in the health plan that contraceptive coverage would be provided separately and at no cost to them.

No real change

The Becket Fund, a nonprofit, public interest law firm that has represented Catholic and other religious institutions in a number of the lawsuits against the HHS mandate, said the new ruling is not much different from the proposed rules the HHS issued in February.

“The news about the final rule is pretty simple: It’s more of the same,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty.

“Essentially, we’re where we’ve been all along; the change now is it is final,” he said, adding that unresolved issues will have to be addressed by the courts.

He took issue with the fact that religious groups with a self-insured plan must still provide notice to the third-party administrator of their plan that they object to paying for coverage of abortifacients and contraceptives, and then the third party must provide the coverage. He also objected that the final rules still do not exempt businesses whose owners, because of their religious beliefs, are morally opposed to the mandate, so they will still be required to provide the coverage or pay up to millions of dollars in fines.