The Affordable Care Act’s Contraceptive Coverage Requirement: History of Regulations for Religious Objections

The Affordable Care Act’s Contraceptive Coverage Requirement: History of Regulations for Religious Objections

April 2, 2015
The Affordable Care Act’s Contraceptive Coverage
Requirement: History of Regulations for Religious Objections
The Affordable Care Act (ACA; P.L. 111-148) requires that
As a result, the Administration indicated in the February
group health plans and health insurance issuers provide
2012 rules that the ACA rules would be amended further to
coverage for certain preventive health services without
accommodate these nonprofit organizations by requiring
imposing any cost-sharing requirements. 42 U.S.C. §300gg-
issuers serving those organizations to offer contraceptive
13(a)(4). The preventive services covered include Food and
coverage to employees directly without cost to the
Drug Administration (FDA)-approved contraceptive
employer. In March 2012, the Administration formally
methods, which generated controversy among employers
announced in an Advanced Notice of Proposed Rulemaking
who oppose the use of contraception based on their
that it would be proposing amendments to the February
religious beliefs. This requirement has been implemented
2012 final rules to provide alternatives for compliance with
through a series of administrative regulations since 2010,
the coverage requirements by organizations that did not
when ACA was enacted. See U.S. Dep’t of Health and
qualify for the exemption. 77 Fed. Reg. 16,501 (March 21,
Human Services, Health Resources and Services Adm.,
2012).
Women’s Preventive Services Guidelines, available at
http://www.hrsa.gov/womensguidelines/.
In the meantime, the February 2012 rules provided a
temporary enforcement safe harbor for nonexempt
July 2010 Interim Final Rules, August 2011
nonprofit organizations with religious objections to
Interim Final Rules, and February 2012 Final Rules
contraceptive coverage. The safe harbor was in effect until
the first plan year which began on or after August 1, 2013.
In July 2010, the Obama Administration issued interim
For protection under the safe harbor, an organization had to
final rules to address the coverage of preventive health
meet four criteria, including be organized as a nonprofit
services. 75 Fed. Reg. 41,726 (July 19, 2010). In August
entity; not offer contraceptive coverage since promulgation
2011, in response to comments received about these
of the final rules; provide notice to participants of
regulations, an interim final rule amending the July 2010
noncoverage; and self-certify compliance with safe harbor
regulations was published, under which the Health
criteria. The safe harbor means that any organization that
Resources and Services Administration could exempt
met these criteria would not be subject to penalties for
religious employers from the contraceptive coverage
noncompliance prior to the safe harbor’s termination.
requirement. 76 Fed. Reg. 46,621 (August 3, 2011). Under
that iteration of the rule, religious employers would qualify
February 2013 Proposed Amendments
for exemption if
to February 2012 Final Rules
(1) the inculcation of religious values is the
The Obama Administration issued proposed amendments in
purpose of the organization;
February 2013 to the February 2012 rules. 78 Fed. Reg.
(2) the organization primarily employs persons
8,456 (February 6, 2013). The February 2013 proposed
who share the religious tenets of the organization;
rules addressed concerns of religious entities in two ways:
expanding the exemption adopted by the February 2012
(3) the organization serves primarily persons who
rules and offering an accommodation to organizations that
share the religious tenets of the organization; and
do not qualify for the exemption. First, the proposed
(4) the organization is a nonprofit organization as
amendments eliminated the first three criteria originally
required to qualify as a religious organization for purposes
described in section 6033(a)(1) and section
of exemption, and also limited the applicable subsections of
6033(a)(3)(A)(i) or (iii) [of the tax code].
the tax code to only 26 U.S.C. §6033(a)(3)(A)(i) or (iii).
Thus, to qualify for exemption, a religious employer must
Although this definition was criticized for excluding many
be covered under the given tax code provisions, which
religious organizations that provide health, education, or
generally encompass churches, church auxiliaries, church
charitable services, the Obama Administration adopted it in
associations, or other religious orders. Under the
final rules published in February 2012. 77 Fed. Reg. 8,725
exemption, employees of religious employers would not
(February 15, 2012). While the definition of religious
receive contraceptive coverage either from their employer
employers for the purposes of exemption was finalized by
or from the issuer directly. Second, the proposed
these rules, a number of entities that would not qualify
amendments included an accommodation for other
under the definition of religious employer continued to
organizations with religious objections to contraceptive
voice concerns about interference with their religious
coverage that would not qualify for the exemption. To
exercise.
accommodate these other eligible organizations, the
proposed amendments shifted responsibility for providing
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The Affordable Care Act’s Contraceptive Coverage Requirement: History of Regulations for Religious Objections
contraceptive coverage for such organizations’ employees
Subsequently, the Obama Administration announced new
to the issuer instead of the employer. To qualify for the
regulatory actions to address both the Hobby Lobby
accommodation, organizations were required to
decision and the Wheaton College order in August 2014.
First, new interim final rules established an alternative
(1) object to coverage of at least some of the
process for eligible employers to provide notice of religious
contraceptive services based on religious beliefs;
objections and request accommodation. 79 Fed. Reg.
(2) be a nonprofit entity;
51,092 (August 27, 2014). Under the August 2014 interim
final rules, such employers may use the self-certification
(3) hold itself out as a religious organization; and
form or may notify HHS in writing. If an employer opts to
(4) comply with the self-certification requirements
submit written notice, the employer must include its name;
of the rule.
the basis of its qualification for accommodation; its
religiously based objection to contraceptive coverage; a list
Under the accommodation, employees of eligible
of the particular contraceptive services to which it objects;
organizations would not receive contraceptive coverage
the plan name and type; and the contact information for its
from their employer, but would have coverage provided
plan’s third-party administrators and health insurance
directly through the health plan issuer at no cost to the
issuers. These rules went into effect upon publication to
employee or employer.
ensure that similarly situated employers had the same
option provided under the Supreme Court’s order.
July 2013 Final Rules
Additionally, the Administration issued notice of proposed
In July 2013, the Administration issued final rules
rulemaking to address the scope of organizations eligible
regarding requirements for contraceptive coverage. 78 Fed.
for accommodation, particularly with respect to the status
Reg. 39,870 (July 2, 2013). The final rules included no
of for-profit entities with religious objections, following
significant changes to the February 2013 proposed rules
Hobby Lobby. 79 Fed. Reg. 51,118 (August 27, 2014).
defining religious employers and providing for
Under the August 2014 proposed rules, the definition of
accommodations of other eligible organizations. Under the
eligible organization for the accommodation would be
final rules, the definition of religious employer included
amended to include certain closely held for-profit entities.
only those nonprofit employers qualifying under
subsections 6033(a)(3)(A)(i) or 6033(a)(3)(A)(iii) of the tax
Thus, to qualify for accommodation under the proposed
code. 26 U.S.C. §6033. Additionally, the final rules
rules and interim final rules issued in August 2014,
adopted the proposed definition of eligible organizations for
organizations must
purposes of the accommodation discussed in the preceding
(1) object to coverage of at least some of the
paragraph. Under the final rules issued in July 2013,
contraceptive services based on religious beliefs;
organizations claiming eligibility for the accommodation
were required to submit a self-certification form, known as
(2) be organized as either (a) a nonprofit entity
EBSA Form 700. The religious employer exemption
holding itself out as a religious organization, or (b)
provided by the final rules applies to plan years that began
a closely held for-profit entity with objections
on or after August 1, 2013, and the remaining provisions of
based on the owners’ religious beliefs, as
the final rules apply to group health plans and issuers for
determined under its rules of governance; and
plan years that began on or after January 1, 2014. In other
words, the safe harbor from enforcement was extended to
(3) comply with self-certification requirements or
allow health plan issuers and administrators time to
provide the prescribed written notice to HHS.
implement the accommodations provided by the final rules.
Citing examples in federal law, the proposed regulations
August 2014 Interim Final and Proposed Rules
offered two options for comments to determine which
closely held entities should qualify for accommodation,
In the summer of 2014, the Supreme Court issued two
depending either on (1) a threshold number of owners or (2)
decisions that led to further changes to the regulations with
a threshold concentration of ownership. See 79 Fed. Reg.
respect to religious objections. In Burwell v. Hobby Lobby
51,122 (August 27, 2014). The Administration has not
Stores, Inc., the Court held that religious objections of
indicated a timeline for future actions regarding these rules.
closely held, for-profit corporations to the contraceptive
coverage requirement must be accommodated under the
For a comprehensive legal analysis of the contraceptive
Religious Freedom Restoration Act (P.L. 103-141). 134
coverage litigation, see CRS Report R43654, Free Exercise
S.Ct. 2751 (2014). In Wheaton College v. Burwell, the
of Religion by Closely Held Corporations: Implications of
Court issued temporary relief to a nonprofit employer with
Burwell v. Hobby Lobby Stores, Inc., by Cynthia Brown.
objections to the self-certification process required under
Cynthia Brown, cmbrown@crs.loc.gov, 7-9121
the July 2013 regulations. 134 S.Ct. 2806 (2014). The
Court’s order in Wheaton allowed the school to notify the

U.S. Department of Health and Human Services (HHS) in
IF10169
writing that it met the eligibility requirements rather than
submit EBSA Form 700, pending its appeal in the case.
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