Self-certification acceptable, consequences remain separate from action

A Missouri liberal arts college with a “five-fold emphasis” on academic, vocational, Christian, patriotic, and cultural education was unsuccessful with its challenge to the contraceptive coverage provisions of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). Arguing that the contraceptive coverage provisions require the school to actively participate in a scheme forbidden by its religious beliefs, the school requested a reprieve from the employer requirements. Because it found that the requirements do not require active participation on behalf of the college, the court ordered the school to comply (The School of the Ozarks, Inc. v. HHS, January 13, 2015, Phillips, B.).

ACA provisions

Under the ACA, employers are required to provide contraceptive coverage benefits in their employee health plans if they employ 50 or more people. Nonprofit religious organizations may claim an exemption to this requirement through an insurance plan or a third-party administrator (TPA) if four criteria are met. The eligible organization must: (1) have a religious objection to some or all contraceptive services required; (2) be a nonprofit entity; (3) hold itself out as a religious organization; and (4) self-certify the above either through EBSA Form 700 (Form 700) sent to the insurance provider or TPA, or a written notice to HHS.

Self-certification

The self-certification process requires the execution of a short form, titled EBSA Form 700-Certification. The form is delivered to the TPA. Once properly completed, the organization is not obligated to comply with the mandate or insurance coverage that is required by the mandate. The TPA becomes responsible for providing or arranging contraceptive coverage for employees of the organization. The insurance company must then notify the employees that the employer is not providing the contraceptive coverage.

The School of the Ozarks (School) believes the destruction of a fertilized egg is morally wrong, based upon its religious beliefs and convictions. It has historically specifically excluded coverage for objectionable contraceptives in its group health insurance plans. The School of the Ozarks qualifies as an eligible organization and is able to utilize an accommodation method, however the School argues that that by utilizing that accommodation, it is being forced into facilitating the provision of religiously offensive contraceptives to its employees in violation of the Religious Freedom Reformation Act (RFRA), which provides that any law which substantially burdens a person’s free exercise of religion must be (1) in furtherance of a compelling government interest and (2) use the least restrictive means of furthering that interest.

Not burdensome

The court disagreed. After the School notifies either the insurer or the government that it would like to opt out of providing contraceptive coverage, the coverage provided is completely segregated from the School’s policy because the burden to provide the coverage falls on a third party. That third party provider cannot directly or indirectly require the School to pay or arrange for the coverage in any way. According to the court, “While the School may disagree with the ultimate outcome that the insurance company provides its employees contraceptive coverage, the actions taken by the government and the insurance provider cannot form the basis of the School’s RFRA claim.”

Compelling government interest

In addition to finding no substantial burden on the School of the Ozarks, the court also held that the government had a compelling interest in issuing the contraceptive coverage mandate. By mandating the coverage, the government was able to alleviate the “administrative, financial and/or logistical burdens on women seeking all types ofcontraception,” which, the court believed, formed a proper basis for establishing a compelling interest.

Further arguments

The School made several other unsuccessful arguments against the mandate. It argued that the accommodation method was not the least-restrictive means that the government could have used. The court disagreed. Because the accommodation requires very little from the School while at the same time, it provides an important role in women’s health and equality, the court stated that the government used the least restrictive means to accomplish its objective.

The School also argued that the mandate was a violation of free speech, but the court held that nothing in the requirement forced the school to speak against its religious beliefs. It also maintained that use of the tax code definitions outside the tax context to define a religious employer “creates impermissible and excessive entanglements between religion and the government,” but the court declined to entertain the argument, holding instead that their argument was “based upon non-binding guidelines which have not been applied to them, and therefore cannot be challenged at this point.” The School’s request was therefore denied.