White House tries for new compromise on birth control

By Maggie Fox, Senior Writer, NBC News

The Obama administration is taking another stab at a compromise over the contentious issue of making employers pay for birth control, offering a way for women to get the coverage without forcing religiously affiliated organizations to pay for it.
The proposed new rule would have insurance companies provide the coverage free of charge through separate, individual health insurance policies. It’s not quite clear how much it would cost or who, exactly, would end up paying for it.
“Under the proposed accommodations, the eligible organizations would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds, the proposed rule reads.
The 2010 Affordable Care Act requires all health insurers to pay for a woman’s contraceptive care without charging her anything. Religious organizations such as the Catholic Church, which oppose artificial birth control, have objected strongly. While churches and other overtly religious organizations were always exempted, things were a little fuzzier for religiously affiliated organizations, such as universities, and private employers who said they had their own personal conscientious objections.
Some employers who don’t oppose birth control in general oppose the requirement that products such as emergency birth control, which they equate with abortion, be supplied.
At least 44 lawsuits have been filed against the government over the issue, The Becket Fund for Religious Liberty, a legal organization helping oppose the mandate, says. It has been a big thorn in the side for the Obama administration.

A year ago the White House came up with a compromise but it did not settle the matter. The new approach tweaks it a little, leaving almost all the responsibility for covering women whose employers object up to private health insurance companies.
Some employers are self-insured, meaning they pay all the costs of health insurance for their workers. Usually, they employ an insurance company to administer the plan. The new compromise leaves it to these third-party administrators to sort out which insurance company will pay for a woman’s birth control through a separate policy.
The insurance company would get a break on user fees that will be charged to join the state health insurance exchanges – the marketplaces where people can go buy health insurance starting in 2014 if they cannot get coverage through an employer, Medicare, Medicaid, Tricare or some other public policy.
The White House argues that it in fact saves money to provide contraception for free. It costs way more to pay for a pregnancy, the administration argues. The Institute of Medicine said on 2011 that it would save the country money and make medical sense to cover birth control for free, so more people would use it.
“Women who work or go to school at these organizations will have free contraceptive coverage and will no longer have to pay hundreds of dollars a year that could go to rent,” said Chiquita Brooks-LaSure, of the Health and Human Services Department’s Center for Consumer Information and Insurance Oversight.
Brooks admitted the administration doesn’t know how much the proposal would cost. “We have not estimated the cost. We certainly welcome comment on that,” she told reporters in a conference call.
The new rules also say religious organizations will be defined just as they are by the Internal Revenue Service.
Left-leaning groups welcomed the policy.  “As we go through this, we want to make sure that the details pan out, but it does seem as if it works,” Marcia Greenberger, Co-President of the National Women’s Law Center, told NBC News in a telephone interview. “Of course, women assume that contraception is part of their health care and it is widely accepted because it is almost universally used.”
"Today's draft regulation affirms yet again the Obama administration's commitment to fulfilling the full promise of its historic contraception policy," said Ilyse Hogue, president of NARAL Pro-Choice America.
“We know that Catholics in the pews support this position, as 98 percent of Catholic women use contraception and 58 percent of Catholics support insurance coverage for contraception,” said Louise Melling of the American Civil Liberties Union. “The ACLU will defend the health and religious liberty needs of employees and hopes the intense recent debate is now be behind us.”
The U.S. Conference of Catholic Bishops said it was studying the proposal. The Susan B. Anthony List, a political action committee that helps campaign for anti-abortion lawmakers, rejected the proposal.
“Once again, President Obama’s so-called ‘compromise’ is unacceptable – religious and moral freedom is not up for negotiation. There must be no religious ‘test’ by the government as to who, and what type of entities, are entitled to a conscience,” said the group’s Marjorie Dannenfelser. “The taking of human life is the antithesis of health care.”
HHS says 90 percent of American women use or have used birth control. The Centers for Disease Control and Prevention estimates that 10.7 million U.S. women use birth control pills. Despite this, CDC says nearly half of all pregnancies are unintended, which in turn can often lead to poor health for the mother and baby.
The proposals will be open for public comment for 60 days before they take effect.

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Women’s Preventive Services Coverage and Religious Organizations

Thanks to the Affordable Care Act, most health plans cover recommended women’s preventive services, including contraception, without charging a co-pay or deductible.  The scientists and other experts at the independent Institute of Medicine provided recommendations to the Department of Health and Human Services (HHS) regarding which preventive services help keep women healthy and should be covered without cost-sharing. The IOM recommended covering contraception without a co-pay or deductible because there are tremendous health benefits for women that come from using contraception. In fact, nearly 99% of all women have relied on contraception at some point in their lives, but more than half of all women between the ages of 18 and 34 have struggled to afford it.
Today, the Obama Administration moved forward to continue to implement provisions in the health care law that would provide women contraceptive coverage without cost sharing, while taking into account religious objections to contraceptive services by certain religious organizations. The Notice of Proposed Rulemaking (NPRM) released today reflects the public feedback from comments on the Advance NPRM issued in March 2012.
Today’s proposals build on the ideas we laid out last year to provide women with coverage for recommended preventive care, including contraceptive services, without cost sharing, while also ensuring that non-profit organizations with religious objections won't have to contract, arrange, pay, or refer for insurance coverage for these services to their employees or students.
Details on these proposed policies are outlined below.  The Administration is seeking comment on these proposals and welcomes feedback from all Americans through April 8, 2013.

Exemption for Religious EmployersGroup health plans of “religious employers” are exempted from having to provide contraceptive coverage, if they have religious objections to contraception.
Today’s NPRM would simplify the existing definition of a “religious employer” as it relates to contraceptive coverage.
The NPRM would eliminate criteria that a religious employer:

1. have the inculcation of religious values as its purpose;
2. primarily employ persons who share its religious tenets; and
3. primarily serve persons who share its religious tenets.

The simple definition of “religious employer” for purposes of the exemption would follow a section of the Internal Revenue Code, and would primarily include churches, other houses of worship, and their affiliated organizations, as defined by Section 6033(a)(3)(A)(i) or (iii)
This proposed change is intended to clarify that a house of worship would not be excluded from the exemption because, for example, it provides charitable social services to persons of different religious faiths or employs persons of different religious faiths.  The Departments believe that this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules. 

Creating Accommodations for Non Profit Religious Organizations 

Consistent with the Advance NPRM, the NPRM proposes accommodations for additional non profit religious organizations, while also separately providing enrollees contraceptive coverage with no co-pays.  An eligible organization would be defined as an organization that:

1. opposes providing coverage for some or all of any contraceptive services required to be covered under Section 2713 of the PHS Act, on account of religious objections;
2. is organized and operates as a nonprofit entity;
3. holds itself out as a religious organization; and
4. self-certifies that it meets these criteria and specifies the contraceptive services for which it objects to providing coverage.

Under the proposed accommodations, the eligible organizations would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.
In addition, under the proposed accommodations, plan participants would receive contraceptive coverage through separate individual health insurance policies, without cost sharing or additional premiums.  The issuer would work to ensure a seamless process for plan participants to receive contraceptive coverage.
With respect to insured group health plans, the eligible organization would provide the self-certification to the health insurance issuer, which in turn would automatically provide separate, individual market contraceptive coverage at no cost for plan participants.  Issuers generally would find that providing such contraceptive coverage is cost neutral because they would be they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women’s health and fewer childbirths.
With respect to self-insured group health plans, the eligible organization would notify the third party administrator, which in turn would automatically work with a health insurance issuer to provide separate, individual health insurance policies at no cost for participants.  The costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay.
The NPRM also proposes that an eligible religious non profit organization that is an institution of higher education that arranges for student health insurance coverage may avail itself of an accommodation comparable to that for an eligible organization that is an employer with an insured group health plan.
The NPRM on women’s preventive services coverage is available here: http://www.ofr.gov/inspection.aspx.
For more information on women’s preventive services coverage, visit:  http://www.healthcare.gov/news/factsheets/2011/08/womensprevention08012011a.html.