ObamaCare's Latest 'Accommodation' to Contraception Mandate: 'Insulting Accounting Gimmick'

On Friday, the Obama administration issued its eighth “accommodation” to ObamaCare’s HHS contraception mandate, which requires most employers to provide free contraceptives, sterilization procedures, and abortion-inducing drugs to employees through their health insurance plans.

Lori Windham, Senior Counsel for the Becket Fund for Religious Liberty, which has represented many of the plaintiffs in their lawsuits against the Administration over the mandate, described the new rule in a press release as “the latest step in the administration’s long retreat on the HHS Mandate.”

In the wake of the Supreme Court’s Hobby Lobby decision, this latest revision of the mandate once again finds the Obama administration doubling down on presenting contraception as a highly prized, yet practically inaccessible – were it not for the government – commodity.

The announcement itself at HHS confirms this continued distortion: “Administration takes steps to ensure women’s continued access to contraception coverage, while respecting religious based objections.”

The statement maintains the Obama administration’s presentation of contraception as a product that women are “entitled to” under ObamaCare “at no additional cost.”

HHS Secretary Sylvia Burwell states, “Today’s announcement reinforces our commitment to providing women with access to coverage for contraception…”

How is it that the Obama administration gives “access” to contraception coverage when women have been walking into CVS, Walgreens, and Walmart for years and accessing it all by themselves, without “coverage?”

Contraception is, and has been, available, without a boss’s permission, for as little as $3.77 per month. In fact, up until 2012 when the HHS mandate came along, birth control had always been a private issue, and certainly never one that was considered to be pertinent to one’s job.

The latest revision of the mandate requires nonprofit organizations to provide written notification to HHS to state their moral objections to offering contraceptive coverage to employees. According to the rule, once it receives notification, HHS will then arrange that coverage for the employees, without involving the employers:

It provides that an eligible organization may notify HHS in writing of its religious objection to coverage of all or a subset of contraceptive services. The notice must include the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type (i.e., whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of ERISA section 3(33)); and the name and contact information for any of the plan’s third party administrators and health insurance issuers… A model notice to HHS that eligible organizations may, but are not required to, use is available at: http://www.cms.gov/cciio/resources/Regulations-and-Guidance/index.html#Prevention. If there is a change in any of the information required to be included in the notice, the organization must provide updated information to HHS…

When an eligible organization that establishes or maintains or arranges a self-insured plan subject to ERISA provides such a notice to HHS, DOL (working with HHS) will send a separate notification to each third party administrator of the ERISA plan. DOL’s notification will inform each third party administrator of the eligible organization’s religious objection to funding or administering some or all contraceptive coverage and will designate the relevant third party administrator(s) as plan administrator under section 3(16) of ERISA for those contraceptive benefits that the third party administrator would otherwise manage. The DOL notification will be an instrument under which the plan is operated and shall supersede any earlier designation. In establishing and implementing this alternative process, DOL is exercising its broad rulemaking authority under Title I of ERISA, which includes the ability to interpret and apply the definition of a plan administrator under ERISA section 3(16)(A).

 If an eligible organization that establishes or maintains an insured health plan provides a notice to HHS under this alternative process, HHS will send a separate notification to the plan’s health insurance issuer(s) informing the issuer(s) that HHS has received a notice under § 2590.715-2713A(c)(1) and describing the obligations of the issuer(s) under § 2590.715-2713A. Issuers remain responsible for compliance with the statutory and regulatory requirement to provide coverage for contraceptive services to participants and beneficiaries, and to enrollees and dependents of student health plans, notwithstanding that the policyholder is an eligible organization with a religious objection to contraceptive coverage that will not have to contract, arrange, pay, or refer for such coverage.

The Hill describes the new rule as an “action” that “amounts to an administrative workaround” that HHS is basing on a suggestion put forth by Supreme Court Justice Anthony Kennedy in the Hobby Lobby decision.

But Breitbart News’ Dan Riehl aptly reports that, as in all things with ObamaCare, “the devil is in the details.” And, of course, one of the main details is who will actually pay for the mandatory contraception “coverage” when those with religious objections opt out.

Riehl writes:

In short, the government will "step in" and cover "the law’s contraception requirements" as yet another taxpayer funded mandate. Also, as opponents charge, it doesn't actually get religious companies out of the birth control business, as they're still the vehicles for the coverage access.

If anything, this 'fix' only makes the so called law worse for everyone who pays taxes.

In addition, the ObamaCare law continues to be changed administratively, as Riehl notes, in response to court rulings and without any congressional intervention.

Arina Grossu, director for the Center for Human Dignity at the Family Research Council, referred to the new rule as an “insulting accounting gimmick” that “maintains the threat of crippling fines on non-profits who stand up for their freedom of conscience.”

“It is simply another clerical layer to an already existing accounting gimmick that does nothing to protect religious freedom,” she continues, “because the employer still remains the legal gateway by which these drugs and services will be provided to their employees.”


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