Update from The State Bar Business Law Section’s HEALTH LAW COMMITTEE – The Affordable Care Act and Health Plans Offered by Religious Employers

Since first announced in August 2011, the inclusion of contraceptive care as a mandatory component in the employer promotion of preventative services sparked a First Amendment inferno that many thought threatened the Affordable Care Act as well as a number of additional federal and state laws.  As a result, the Federal Government partially recanted this requirement by delaying its implementation for certain entities by an additional year. Regulations promulgated in 2012 kept contraceptive care in the gamut of preventative services, but created a temporary enforcement safe harbor for objecting employers. In 2013, the Federal Government issued proposed rules in an attempt to end the contraception controversy and its challenge to the Affordable Care Act’s commitment to preventative services. Some 200,000 comments later, the preventative services coverage rules in 2013 lowered the burden so employers can sidestep certain separations between church and state. 

That 2013 compromise, however, was not enough, and the most recent regulations (79 Federal Register 51092 (Aug. 27, 2014)) requires coverage without cost sharing of certain preventative health services by non-grandfathered group health plans and health insurance coverage.  This includes women’s preventative health services, but group health plans established or maintained by certain religious employers (and group health insurance coverage provided in connection with such plans) are exempt from the applicable requirements to cover certain contraceptive services. The new regulations also contain provisions for accommodations with respect to contraceptive coverage, as well as a mechanism for separately furnishing payments for such care. The new regulations also comply with the United States Supreme Court’s holding in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014).

To read the full text of 79 Federal Register 51092 (Aug. 27, 2014), click here.

To read the full decision in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), click here.