First on CNN: Biden administration to strengthen Obamacare contraceptive mandate in proposed rule

The Biden administration wants to make it easier for women to access birth control at no cost under the Affordable Care Act, reversing Trump-era rules that weakened the law’s contraceptive mandate for employer-provided health insurance plans.

The proposed rule, unveiled Monday by the departments of Health and Human Services, Labor and Treasury, would remove an exemption to the mandate that allows employers to opt out for moral convictions. It would also create an independent pathway for individuals enrolled in plans offered by employers with religious exemptions to access contraceptive services through a willing provider without charge.

The proposed rule would leave in place the existing religious exemption for employers with objections, as well as the optional accommodation for contraceptive coverage.

The administration crafted the proposed rule keeping in mind the concerns of employers with religious objections and the contraceptive needs of their workers, a senior HHS official told CNN.

“We had to really think through how to do this in the right way to satisfy both sides, but we think we found that way,” the official said, stressing that there should be no effect on religiously affiliated employers.

Students at religiously affiliated colleges would have access to the expanded accommodation, just like workers in group health plans where the employer has claimed the exemption.

Now that the proposed rule has been announced, the public will have the opportunity to comment during the next few months. Officials expect there to be many thousands of public comments, and it will be “many months” before the rule could be finalized.

HHS expects the proposal would affect more than 100 employers and 125,000 workers, mainly through providing the proposed independent pathway for employees to receive no-cost contraception.

Women using that pathway would obtain their birth control from a participating provider, who would be reimbursed by an insurer on the Affordable Care Act exchanges. The insurer, in turn, would receive a credit on the user fee it pays the government.

“If this rule is finalized, individuals who have health plans that would otherwise be subject to the ACA preventive services requirements but have not covered contraceptive services because of a moral or religious objection, and for which the sponsoring employer or college or university has not elected the optional accommodation, would now have access,” Centers for Medicare and Medicaid Services Administrator Chiquita Brooks-LaSure said in a news release.

How many people benefit, however, would depend on whether women and their health care providers know the independent pathway exists and whether providers and insurers are willing to set it up.

“We’ll just have to see how widely that information is spread and in what way to providers and individuals,” said Laurie Sobel, associate director for Women’s Health Policy at the Kaiser Family Foundation, noting that the proposed rule would not require data collection to show the pathway’s takeup.

But the Planned Parenthood Federation of America cheered the initiative.

“Employers and universities should not be able to dictate personal health care decisions and impose their views on their employees or students,” said Alexis McGill Johnson, the group’s CEO. “The ACA mandates that health insurance plans cover all forms of birth control without out-of-pocket costs. Now, more than ever, we must protect this fundamental freedom.”

Controversial mandate

The requirement to provide no-cost contraception is not in the Affordable Care Act itself. Instead, HHS under former President Barack Obama included it as one of the women’s preventive services that all private insurance plans must offer without charge.

The mandate was controversial from the start, sparking lawsuits from religiously affiliated employers and closely held companies that said it violated their beliefs. Exemptions and accommodations have been available for such employers.

The Trump administration, however, weakened the mandate. Under the rules issued in 2018, entities that have “sincerely held religious beliefs” against providing contraceptives are not required to do so. That provision also extends to organizations and small businesses that have objections “on the basis of moral conviction which is not based in any particular religious belief.”

The rules also include an optional accommodation that lets objecting employers and private universities remove themselves from providing birth control coverage while still allowing their workers and dependents access to contraception. But the employer or university has to voluntarily elect the accommodation, which risks leaving many without access.

The Trump administration changes were temporarily blocked after a Pennsylvania district court judge issued a nationwide injunction in 2019. But the following year, the Supreme Court ruled that the administration could expand exemptions for employers who have religious or moral objections to covering contraception.

At the time, the National Women’s Law Center estimated that the ruling would impact about 64.3 million women in the United States with insurance coverage that included birth control and other preventive services without out-of-pocket costs.

Employers are not required to notify HHS if they have a moral objection. The agency estimates about 18 employers have claimed that exemption and around 15 employees are affected.

Still, if the rule is finalized, senior HHS officials say it is “plausible” there could be potential lawsuits brought by religiously affiliated employers — similar to what has been seen in the past.

“There’s no new obligation on them to participate in any sort of process. This is simply an additional channel for employees in those employer health plans to receive access to contraceptive services,” another senior HHS official said.

Ensuring birth control access post-Roe

The contraceptive mandate has taken on increased importance now that the Supreme Court has overturned Roe v. Wade, allowing many states to impose severe restrictions on abortion access.

The Biden administration in turn has focused on continuing access to birth control at no cost. The Health, Labor and Treasury department secretaries last year met with health insurers and issued guidance underscoring Obamacare’s contraceptive coverage requirements for private insurance under the Affordable Care Act.

“Now more than ever, access to and coverage of birth control is critical as the Biden-Harris Administration works to help ensure women everywhere can get the contraception they need, when they need it, and — thanks to the ACA — with no out-of-pocket cost,” HHS Secretary Xavier Becerra said in a news release.

This story has been updated with additional information.

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