So it looks like the Obama administration is trying to follow the Supreme Court’s recommendation for a less restrictive means of implementing the contraception mandate. They are proposing a new ACA rule that would extend the secondary accommodation to closely-held private companies. You can read the full proposed rule here. The relevant portion:
In light of the Court’s decision in Hobby Lobby, the Departments propose to amend the definition of an eligible organization under the July 2013 final regulations to include a closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered. Under these proposed rules, a qualifying closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered would not be required to contract, arrange, pay or refer for contraceptive coverage; instead, payments for contraceptive services provided to participants and beneficiaries in the eligible organization’s plan would be provided separately by an issuer … or arranged separately by a third party administrator ….
In considering inclusion of certain closely held for-profit entities …, the Departments are considering and seek comment on how to define a qualifying closely held for-profit entity…. [T]he Departments are proposing for comment two possible approaches to defining a qualifying closely held for-profit entity…. Under the first proposed approach, a qualifying closely held for-profit entity would be an entity where none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners…… Under a second, alternative approach, a qualifying closely held entity would be a for-profit entity in which a specified fraction of the ownership interest is concentrated in a limited and specified number of owners.
They’re also proposing a rule change for religious non-profits and educational institutions, presumably in the hope of getting out of all the lawsuits filed over them having to fill out a form saying they object to the mandate, which then triggers the secondary accommodation.
These interim final regulations amend the Departments’ July 2013 final regulations to provide an alternative process for the sponsor of a group health plan or an institution of higher education to provide notice of its religious objection to coverage of all or a subset of contraceptive services, as an alternative to the EBSA Form 700 method of self-certification. These interim final regulations continue to allow eligible organizations to use EBSA Form 700….The alternative process … is consistent with the Wheaton order. 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 … and the name and contact information for any of the plan’s third party administrators and health insurance issuers…..
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….
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.
I doubt that will fix the problem, though. These religious non-profits are arguing that even though they are given an exemption from the law, merely having to fill out the form saying they object to providing contraception is a violation of their religious beliefs because it makes them a participant in the process that leads to contraception coverage by someone else. I don’t see how having them send a letter noting their objection will satisfy them if having them fill out a form won’t.