Birth Control Provision in ACA Revised

When the Affordable Care Act defined contraceptive coverage as one of the essential benefits employers must provide free of charge, it set off a firestorm of protest from religious groups. A final rule, released Friday, may suppress the flames.

The revised rule will make it easier for some employers with religious objections to avoid providing contraceptive coverage. However, the Department of Health and Human Services will not allow for-profit companies to exempt themselves from the contraceptive mandate.

The final rule comes after much squabbling and many legal battles involving businesses and nonprofits who objected on religious grounds to being forced to provide the contraceptives to employees.

The ACA's contraceptive mandate, which took effect Aug. 1, 2012, says all new insurance policies must provide birth control with no copayment. The requirement has riled political conservatives who say it encroaches on their religious freedom by forcing some faith-based employers to provide contraceptive coverage against their will.

"Today's announcement reinforces our commitment to respect the concerns of houses of worship and other nonprofit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work," Health and Human Services Secretary Kathleen Sebelius said in a statement.

Friday's final rule is "very similar" to the proposed rule HHS published in February 2012. Churches themselves were exempt from the rule, but hospitals, universities, and other organizations with religious affiliations were not.

The definition of "religious employers" who could be exempt from the rule was made simpler after feedback HHS received. The final rule eliminates requirements that a religious employer:

Have the inculcation of religious values as its purpose
Primarily employ persons who share its religious tenets
Primarily serve persons who share its religious tenets

The streamlined definition of "religious employer" - which primarily consists of churches and other houses of worship - is based solely on Internal Revenue Service code. Only those religious employers will be completely exempt from the contraceptive mandate.

Friday's final rule also solidifies an agreement the Obama administration previously made with nonprofit religious organizations like hospitals and universities that object to contraceptive coverage, although critics have complained that the definition of nonchurch religious organizations is too narrow and difficult to meet.

Under the agreement, these organizations arrange for separate coverage through health plans women can enroll in at no cost.

Religious organizations must notify beneficiaries that they object to contraception coverage and provide information on the separate, no-cost contraceptive coverage. Self-insured health plans must notify their third party administrator, who must inform enrollees of arrangements to provide no-cost contraceptive coverage.