Administration expands opt-out for ACA contraceptives mandate

The legal battle between religious organizations and employers and the Administration over the ACA's mandate that employer-sponsored health insurance fund birth-control coverage for women as part of their essential health benefits took a new turn today. In a notice of proposed rulemaking, the Administration said it would seek public comment on a new "opt out" provision that is designed to meet the concerns of faith-based opponents to the earlier contraceptive mandate proposed for the ACA by the Administration.  

The proposed new rule, announced by Health and Human Services Secretary Kathleen Sebelius, would provide contraceptive coverage with no cost sharing or co-pays for women, a stated ACA goal.  Yet, the proposed rule would enable a wide range of non-profit religious employers—including “self-insured” employers—to opt out of activities associated with planning, contracting, arranging and paying for coverage associated with contraception, which many have objected to on religious grounds.  The new rules are open for public comment through April 8, 2013

As a result of the new option, these employers—as well as houses of worship whose ability to opt out was assured under the original ACA regulations—will be able to offer their employees health-care plans that do not cover contraception.  Instead, the employer’s health insurance company must offer the affected employees a separate, no-cost policy that covers contraception.  In the case of self-insured employers, affected employees would be enrolled in a similar no-cost policy provided by a third-party insurer.

Funding to cover the additional no-cost contraceptive coverage plans would be provided indirectly by the federal government, which would give insurance companies who provide these plans a discount on the fees required to sell their health plans through the ACA’s planned system of health insurance exchanges.  

I for one am happy to see the evolution of this new rule, since the previous one really split Catholics, a significant group of Americans (and voters).  Catholic religious tradition has generally supported public programs that ensure just access to life’s essentials—food, shelter, medical care—for all Americans, but has continued to oppose contraception and abortion.  In the recent debate over the ACA, the Catholic Bishops and many of the Catholic faithful have held that the moral wrong of requiring employers opposed to contraception to fund it in their health plans represents an abridgment of religious freedom. As a result, they have, essentially, stood in opposition to the advancement of the healthcare law.

Anything that delays or impedes the ACA's implementation, of course, has significant implications for those Americans whose behavioral health disorders are not covered, or are insufficiently covered, by currently available health plans. In 2014 and thereafter, the set of state-defined essential health benefits mandated by the ACA - the same set of benefits that includes the controversial contraception coverage - extends "parity-level" coverage for mental health and substance use disorders and a host of other health services that aren't at all controversial to those who need them.

If the latest Administration plan—or anything like it—effectively addresses this faith-based concern regarding contraception coverage, then it is reasonable to think that Catholics—and other religious groups who share similar beliefs—will be far more likely to embrace the obvious social justice of the ACA, which represents the best and most socially just alternative yet seen to the problems of poor, uninsured, or underinsured Americans and our nation's out-of-control healthcare bill.