Friday, October 6, 2017

Guide to Resources on New Religious Objection/Contraceptive Coverage Policy

On October 6, 2017, the Administration released two interim final rulemaking documents that codify HHS's waivers of the contraceptive coverage requirement of the ACA for religious or moral objectors.  The path to the different documents are usually not cited in press articles, and are provided here.  The regulations published include one document on religious exemptions and a separate, standalone document on moral exemptions; they total 263 pages.
  • Coverage at MedPage Today, here.  A deep dive 7000-word analysis at Health Affairs by Timothy Jost, here.  A follow up article on legal challenges, here.
  • White House Press Release October 6, here.
    • Link back to May 2016 Executive Order, asking HHS to undertaking rulemaking on the issue, here. [*]
      • The HHS responded with rulemaking over 150 days at 1.7 pages per day.  
      • 2.4 pages per day if working M-F.
  • The relevant law as written in the 2010 ACA itself (42 USC 300gg-13), here.
  • Note there are two new rules, one "Moral" and one "Religious."
    • New interim rulemaking, Moral Exemptions and Accommodations for Coverage of Preventive Services, here.   PDF here.  100 pp [!]
    • New interim rulemaking, Religious Exemptions and Accommodations, here.  PDF here.  163 pp [!]
    • Although there are the two documents, on page 82, the Moral document states: "We assume that no entities with non-religious moral objections...will  use the accommodation."  So an entity may have a moral objection to contraception that is religious in its basis, but is not expected to have a moral objection that has no religious basis.  The entity itself does not have to be a "religious" entity as long as its objection is religious in basis.   2013 proposed rulemaking was to apply only to religious organizations and entities (see e.g. page 17.)
    • The law cites precedent in other laws, e.g. individuals are protected from being forced to participate in abortions by their employer.  
      • The two documents are so long because they read like 150-page law review articles.  One footnote reaches 600 words.
    • The text of the actual regulations is clipped here (5475 words).
  • The statute (300gg-13 above) only states that the required preventive benefits for women shall be those that are created and endorsed by the Health Resources and Services Administration, HRSA.  
    • Those were created and published by HRSA in 2011, here.  They were finalized (and can be revised by HRSA) after public meetings in 2010/2011.   
    • They were updated in December 2016 (e.g. before the current administration), here.  
    • These guidelines appeared to already have footnoted exceptions for religious organizations.  
    • See also regulations at 45 CFR 147.130.  Prior to the current rulemaking, these were most recently dealt with in 2015 in rulemaking (80 FR 41317, here.)
  • Separately, The Center for Consumer Information and Insurance Oversight (CCIIO) released a new bulletin regarding of enforcement of non-coverage of voluntary abortions by federal insurance.   Health plans offering such coverage must clearly segregate it, in plan documents, and make ultra-clear it is financed separately.  The CCIIO document is here and the Health Affairs deep dive blog is here.
    • The goal is to ensure that these Hyde Amendment concepts are rigorously enforced.

Intersection of Separately Describe Preventive and Drug Formulary Benefits?
The new regulations focus entirely on the special women's preventative health benefit, and allowing exemption from its requirement to cover contraceptives as a preventive (no copay) benefit.  Oral contraceptives are also drugs, and might also be regulated by the separate area of legislation that describes ACA drug formularies, which may have copays, but under which drugs must be covered at the greater of (1) one drug in every USP category and class, or (2) the same coverage as the drugs in that state's essential health benefits benchmark plan.  See e.g. Ung et al. 2015 (here).

Word Counts
In the Moral exception document, the word sincere appears 55 times; and 47 times in the Religious exception document.  The word religious appears 222 times in the Moral exceptions document and 305 times in the Religious exceptions document.

[*]  The May 2017 Executive Order was written in such a way as to allow HHS to create exemptions from coverage of all types of women's health benefits, not just contraception.  I did not identify a reference or crosswalk to the Formulary or Essential Health Benefits in the two new regulations.