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Who Qualifies Under New 'Simplified' Contraceptive Mandate Exemptions?

(UPDATED) The contraception mandate has been postponed until January 2015, but that could mean trouble for business owners with pending lawsuits.

Update (July 3): The Obama Administration announced yesterday that it is postponing the requirement that employers provide access to contraception for female employees under the Affordable Care Act. As a result of the new, one-year extension, the provision now will take effect in January 2015.

And while some business owners would consider that good news in the short run, Howard Friedman of Religion Clause notes that it could raise "the question of whether any of the numerous small business lawsuits objecting on religious freedom grounds to complying with the contraceptive coverage mandate might be dismissed on ripeness grounds."


The Obama Administration has finalized its policies on exemptions for religious employers who object to providing contraception coverage in employee health plans.

According to the Department of Health and Human Services (HHS):

The final rules...lay out the accommodation for other non-profit religious organizations—such as non-profit religious hospitals and institutions of higher education—that object to contraceptive coverage. Under the accommodation...such coverage is separately provided to women enrolled in their health plans at no cost.

HHS also states that the rules are very similar to—but simpler than—what the Obama Administration proposed in February.

According to Michael Hash, director of the Office of Health Reform, one change is that churches and houses of worship now can qualify for exemptions even if they employ people not of their faith. In addition, HHS now has "more clearly defined how those (contraception) benefits will be delivered" via third-party insurance administrators, as well as "how insulated the eligible organization is" from providing the act of providing contraceptive coverage, Hash said in a phone call with reporters Friday afternoon.

Organizations now are "relieved of any obligation to arrange, contract, pay or refer" contraceptive coverage for employees or students, said Chiquita Brooks-LaSure, deputy director of policy and regulation at the Center for HHS' Consumer Information and Insurance Oversight. Instead, third-party administrators, not the religious employers, will provide separate payments for women whose employers have elected not to provide contraceptive services.

"We received over 400,000 comments on the rules," Brooks-LaSure said on the phone. "We did simplify and clarify the approach we took, and that was largely as result of comments from both issuers and religious organizations and women's groups."

According to the Centers for Medicare and Medicaid Services (CMS), non-profit relgious organizations now will be required to meet four standards in order to qualify for an exemptions. CMS states,

An eligible organization is one that:

1. on account of religious objections, opposes providing coverage for some or all of any contraceptive services otherwise required to be covered;
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 in accordance with the provisions of the final regulations.

Under an accommodation, an eligible organization does not have to contract, arrange, pay or refer for contraceptive coverage. At the same time, separate payments for contraceptive services are available for women in the health plan of the organization, at no cost to the women or to the organization.

The rules state that religious organizations can self-certify that they qualify for the exemptions, and potential organizations that could receive exemptions include non-profit charities and hospitals, in addition to universities.

Yet, these new rules do not address the cases of for-profit employers, such as Hobby Lobby, who object to the HHS mandate. Yesterday, though, CT reported that Hobby Lobby had won a "major victory" in its case for an injunction.

Brooks-LaSure had no comment regarding ongoing litigation for for-profit employers.

CT also previously rounded up the wave of contradictory court rulings released as fines over the contraceptive mandate were scheduled to begin. (Of note: For-profits seeking injunctions against HHS have 21-7 winning record.) Hobby Lobby, among the many surprising Christian organizations suing the government, recently lost its bid for an injunction before the Tenth Circuit Court of Appeals, as well as its subsequent request for a temporary restraining order before the United States Supreme Court.

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