In the wake of Zubik v. Burwell and the U.S. Supreme Court’s suggestion, HHS, the Internal Revenue Services (IRS), and the Department of Labor (DOL) have requested input for alternative ways to ensure that employees of organizations that object to contraception on religious grounds receive coverage. Upon vacating and remanding Zubik and other parallel decisions concerning accommodations to the Patient Protection and Affordable Care Act’s (P.L. 111-148) (ACA) contraception coverage requirement, the court stated that the government and the employers should arrive at a compromise that works for all parties involved (Notice, 91 FR 47741, July 22, 2016).
Zubik. The Supreme Court declined to rule on any of the merits of the case, even after each of the parties submitted their plans for how employees of non-profit religious organizations could obtain contraceptive care without violating the Religious Freedom Restoration Act (RFRA) (see High Court’s contraception compromise appears ‘unworkable’, April 27, 2016). The religious organizations argue that the current accommodations, which requires them to submit written notice that they object to the provision of coverage, violates RFRA because they are required to take a specific action.
Religious organizations suggested that insurance companies be allowed to over contraceptive-only policies. When a religious employer chooses to offer a plan without contraceptive coverage, the insurers could then contact female employees and offer the coverage for free. The federal government found this option to have logistical problems, and stated that requiring women to take action could be a barrier to receiving preventive coverage.
Information request. The government is soliciting input from a wide variety of parties, noting the significant impact accommodation changes could have. The notice expresses the departments’ position that the current accommodations are consistent with RFRA, and finds that the requirement to provider written self-certification to be an important one. The notice asks objecting organizations whether a plan in which the organizations request a policy from the insurer that does not include contraceptive coverage would resolve their RFRA claims. It also inquires whether there would be a RFRA issue if organizations were required to note that the objection was based on religious grounds, and what steps could mitigate any burdens on all parties if the written notification requirement was lifted. Finally, the government asks for an analysis of the impact of the modification on women enrolled in plans offered by objecting employers and their ability to receive coverage for services.
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