Mandatory Contraceptive and Preventive Coverage Begins While Litigation Continues

Health plans that are renewed and begin a new coverage year after August 1, 2012, will have to provide coverage without a deductible or copay for 8 preventive services for women, according to HHS Secretary Kathleen Sebelius.  Included in those services are FDA approved contraceptive services.  HHS Secretary Kathleen Sebelius estimates that this new requirement will provide coverage to 47 million women.  However, millions of women will not have access to the coverage for these services because their health plans are grandfathered or sponsored by a religious employer and therefore exempt from this requirement.

New services. The eight new prevention-related services that health plans must  cover at the beginning of the next plan year include:

  • (1) well-women visits;
  • (2) gestational diabetes screening that helps protect pregnant women from one of the most serious pregnancy-related diseases;
  • (3) domestic and interpersonal violence screening and counseling;
  • (4) FDA-approved contraceptive methods, and contraceptive education and counseling;
  • (5) breastfeeding support, supplies, and counseling;
  • (6) HPV DNA testing, for women 30 or older;
  • (7) sexually transmitted infections counseling for sexually active women; and
  • (8) HIV screening and counseling for sexually active women. 

These services are based on recommendations from the Institute of Medicine, which relied on independent physicians, nurses, scientist, and other experts as well as evidence-based research to develop its recommendations. 

Exemptions. Grandfathered plans, which are plans that had at least one member on March 23, 2010 and that have continuously covered at least one individual since that date and have had no significant plan changes in that time, and religious employers are exempt from having to provide this coverage, as a result millions of women will not receive this coverage.

Religious employers are also exempted from having to provide this coverage. Religious employers are organizations that meet all of the following requirements: (1) have inculcation of religious values as the purpose of the organization, (2) primarily employes persons who share the religious tenets of the organization, (3) serves primarily persons who share the tenets of the religious organization, and (4) is a non-profit organization. Many religious institutions such as universities and hospitals  serve more than people of their own faith.

On-going litigation. Several court cases have been filed to prevent enforcement of the regulation for religious institutions or for religious reasons.  The District Court in Colorado recently issued a preliminary injunction prohibiting the HHS Secretary and other federal agencies from enforcing the regulation against one particular employer for a three-month period.  In that case, Newland v. Sebelius, the court found that there was not a compelling interest for the government to enforce these rules when the rules are pitted against the free exercise of religion and the fact that so many individuals are exempt from the mandate. In this instance, the owners of a heating and air conditioning company argued that this regulation violated the Religious Freedom Restoration Act which prohibits the government from putting a substantial burden on the free exercise of religion without a compelling reason.

The employer’s articles of incorporation state that the primary purposes of the business are to be achieved by following appropriate religious, ethical or moral standards and the board of directors is authorized to prioritize those religious, ethical, and moral standards at the expense of profitability. In demonstration of carrying out these articles, the company has donated signficant amounts of money to Catholic organizations.

The government argues that the burden of purchasing insurance is borne by the company and not the individuals running the company.  The government continues that a corporation can not engage in an exercise of religion. As such, the preventive care coverage mandate can not burden the company’s free exercise of religion.

These arguments lead the court to ponder, among other things, whether a closely held subchapter-S corporation owned and operated by a small group of people professing adherence to uniform religious beliefs be treated differently than a publicly held corporations owned and operated by a group of stakeholders with diverse religious beliefs? The court answered its question by saying that these and other arguments pose difficult questions that merit  more deliberative investigation.

Other cases, brought by religious organizations,  have been dismissed on the grounds that (1) the regulations have not gone into effect, (2) the religious organizations have an additional year to become compliant, and (3) ongoing revisions to the regulations  definition of religious employer might make court action unnecessary.  The Secretaries of HHS, Treasury and Labor issued a Final rule on  February 15, 2012 seeking comments on how to provide contraceptive services free of charge to employees of non-exempt, non-grandfathered organizations with religious exemptions.

As these regulations become effective the battle continues as to whether or not they are permissible.