New ACA Birth Control Rules Issued in Response to Religious Objections

Author: Gloria Ju

August 29, 2014

On August 22, the Obama Administration announced both interim final rules and proposed rules aimed at quelling religious objections to the Affordable Care Act's birth control mandate in light of the Supreme Court's Hobby Lobby and Wheaton College decisions.

The interim final rules not only maintain the existing accommodation for certain religious nonprofits to provide notice of their objection to covering contraceptive services, but also create an alternative way for such organizations to do so. The existing accommodation allows religious nonprofits to certify to their health insurance issuer or third-party administrator (TPA) on EBSA Form 700 that they have religious objections to providing some or all contraceptive services.

The new, alternative way allows eligible organizations to instead notify the Department of Health and Human Services (HHS) in writing of their religious objection to contraception coverage. HHS will then notify the insurer for an insured health plan, or the Department of Labor will notify the TPA for a self-insured plan, that the organization objects to providing contraception coverage. Under both accommodations, the insurer or TPA must then provide or arrange separate payments for contraceptive services at no cost to the covered employees or the organization.

In Wheaton, a religious school objected to providing notice using Form 700 because the school would still have an indirect role in providing access to birth control. The Court held that the school did not have to file the form while the case is being decided.

The proposed rules focus on how the accommodation that is available to nonprofit religious organizations may be extended to certain closely held, for-profit companies. Public comments are requested on how to define a closely held, for-profit company and on other possible approaches to implementing this policy. The Court ruled in Hobby Lobby that the birth control mandate violates the religious rights of closely held, for-profit companies with religious objections to providing contraception.

"Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work," said Health and Human Services Secretary Sylvia Burwell. "Today's announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by nonprofit organizations and closely held, for-profit companies."

Both rules were published in the Federal Register on August 27. The interim final rules became effective immediately upon publication, and comments will be accepted until October 27. Comments on the proposed rules must be submitted by October 21.