Contraception Compromise in the Works?
By Jonathan H. Adler
Yesterday, the Department of Health and Human Services proposed a compromise to quell concerns about the contraception mandate. Although the intent to offer a compromise had been announced before, HHS did not outline an actual proposal and initiate a proposed rulemaking until yesterday. The proposal largely follows what the administration announced previously, with the exception of the provisions governing self-insured plans, which are likely to remain the biggest sticking point for the policy.
Under fire from leading Roman Catholic hospitals and other institutions, the administration has proposed shifting the cost of providing birth control coverage onto insurance companies, while prohibiting those insurers from passing on the additional cost to employers.
But it was unclear what this would mean for large, religiously affiliated employers that self-insure rather than hire insurance companies to assume the risk of providing health benefits to their employees.
In a notice released Friday, the Department of Health and Human Services suggested these self-insured employers could pass the cost of contraceptive coverage to whomever administers their health benefits. Large employers typically contract with insurance companies to handle billing and other administrative tasks associated with providing health benefits.
These administrators would then use funds from other sources, such as rebates they might receive from drug makers, to offset the cost of the contraceptive benefit, according to administration officials.
The Obama administration also suggested that new national health plans to be set up under the law could be required to offer supplemental contraceptive coverage to employees of religiously affiliated institutions.
It remains to be seen whether this proposal addresses the legal and religious liberty concerns initially raised by the mandate, and whether the administration has sufficient legal basis to shift responsibility for the mandate from insurers to plan administrators.
At the same time, HHS finalized a separate regulation governing contraception coverage ni studenthealth plans offered by universities. According to the LAT:
In a separate regulation posted Friday, the administration indicated that student health plans at religiously affiliated colleges and universities that do not self-insure would also have to cover contraceptives without cost-sharing, but the costs would have be borne by the insurers.