RPC Reg Spotlight February 7, 2012

 

Regulatory Action in the Spotlight:

 

Coverage of preventive services under the Patient Protection and Affordable Care Act

 

 

Adverse Effects:

 

  • No conscience exemption for faith-based organizations.
  • Violation of First Amendment right of Religious Freedom.

 

 

Response of the Obama Administration:

 

Language in the Patient Protection and Affordable Care Act (PPACA) contains a provision that mandates a list of “essential health benefits” that almost all health care plans must include (§1302(b)).  PPACA creates a list of “preventive services” that all health care plans are required to provide without co-pays or out-of-pocket expenses (§1001).  Both of these mandates are broad, giving wide discretion to the Health and Human Services Secretary in interpreting the law.  Though PPACA does explicitly state that abortion is not considered an “essential health benefit”, the law remains silent on what can be mandated as a “preventive service”.  Also, PPACA does not include provisions for religious conscience exemptions of the required mandates.  Uproar over these provisions began to rise in August 2011 after HHS outlined the new birth control mandate (RIN 0938-AQ07). 

 

On January 20, 2012 Secretary Kathleen Sebelius announced that the HHS would be requiring employers to provide contraception in their health care coverage.  Secretary Kathleen Sebelius said, “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services… The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health-care providers.” Secretary Sebelius has agreed to give an additional year to non-profit institutions, such as church-related hospitals, colleges and social services, before they must comply with new PPACA regulations. 

 

 

Impact on the United States:

 

Employers that do not provide health insurance approved by the current law will face a fine of $2,000.  Catholic hospitals are nearly 13% of the nation’s total and employ more than 600,000 people according to the Catholic Health Association. A large Catholic-affiliated employer, such as Catholic Charities or the University of Notre Dame, could be fined millions of dollars for failing to conform. 

 

The Catholic Church, in particular, has made it known that it feels threatened by the possible ramifications of these mandates.  “In effect, the president is saying we have a year to figure out how to violate our consciences,” said Cardinal-designate Timothy M. Dolan, archbishop of New York and president of the U.S. Conference of Catholic Bishops. “To force American citizens to choose between violating their consciences and forgoing their healthcare is literally unconscionable.  It is as much an attack on access to health care as on religious freedom. Historically this represents a challenge and a compromise of our religious liberty.”   

 

 

In Closing:

 

This new rule threatens a basic and fundamental American right.  Though recognizing the sensitive nature of the controversy, and by forcing employers to comply or face steep fines, the Obama administration has moved ahead with rules that directly contradict the fundamental beliefs of a wide range of American citizens. 

 

 

Relevant Legislation:

 

Rep. Jeff Fortenberry has introduced H.R. 1179, a companion to a bill Sen. Blunt introduced in the Senate.  The bill seeks to permit a health plan to decline coverage of items that are contrary to the religious beliefs of the employer.  It will do so by codifying a series of exceptions to the new health care law on religious and conscience grounds.  Also, in a letter currently circulating in Congress, Rep. Steve Scalise urges Secretary Sebelius to reconsider this rule “until you can ensure that both employers and individuals are afforded their constitutionally protected conscience rights.”