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HHS Plan to Require Free Contraception Adds Transition Period for Religious Employers

By Jane Norman, CQ HealthBeat Associate Editor

January 20, 2012 -- Nonprofit religious employers must comply with a federal requirement that their health insurance plans provide free contraceptive services to employees. But they will be given a year's transition time, Health and Human Services (HHS) Secretary Kathleen Sebelius announced last week.

The transition will apply to religiously affiliated groups, such as hospitals, charities and universities that currently do not provide contraceptive services. Faith institutions such as churches, synagogues and mosques will continue to be exempt from the requirement, as well as primary or secondary schools closely tied to them, HHS officials said.

The Obama administration's long-awaited decision—disclosed two days before the 39th anniversary of the Roe vs. Wade decision that established abortion rights—was praised by groups like Planned Parenthood and women serving in Congress.

Sen. Barbara Boxer, D-Calif., called it "a critical step forward for women's health that will prevent abortions and ensure that millions of American families have access to affordable birth control." Rep. Nita Lowey, D-N.Y., said that women who work for religious institutions deserve the same access as everyone else to free contraception.

But the move was immediately attacked by Republicans who said it will force religious employers to either violate the tenets of their faith or stop offering health insurance to their employees. Religious groups and Catholic bishops had asked the Obama administration to widen its conscience clause exemption after a first draft of the final rule was published in August.

Senate Republicans said in a blog post that "this decision looks suspiciously like yet another political stunt designed to delay the controversy by another year, until after the president's re-election campaign."

Heads of Catholic hospitals, colleges and other institutions had signed on to a full-page ad in the New York Times and Washington Post in December urging that HHS "protect conscience rights" and amend its proposal. "As written, the rule will force Catholic organizations that play a vital role in providing health care and other needed services either to violate their conscience or severely curtail those services," said the ad.

The U.S. Conference of Catholic Bishops called the HHS rule "literally unconscionable" in a statement on their web site. "We will do all we can to defend the First Amendment,'' said the group's spokeswoman, Sister Mary Ann Walsh. "We're contemplating all possible responses."

The federal government's decision comes not long after another by HHS on birth control that provoked wide controversy, though that one greatly displeased women's health advocates and some congressional Democrats. Sebelius in December overruled Food and Drug Administration Commissioner Margaret Hamburg and said that age restrictions would remain in place on the Plan B "morning-after" pill.

This time around, women's health advocates were much more satisfied. But Sebelius stressed that the administration remains "fully committed" to partnerships with faith-based organizations.

"This decision was made after very careful consideration, including the important concerns some have raised about religious liberty," Sebelius said in a written statement. "I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services."

The announcement by Sebelius followed an interim final rule published in August that required most health insurance plans to cover all FDA-approved contraceptive services without a co-pay, coinsurance or deductible by Aug. 1, 2012. The services include sterilization. Morning after pills would be covered but to be free would need a doctor's prescription.

These contraceptive services—which do not include abortions—are considered preventive services under the health care overhaul (PL 111-148, PL 111-152). The administration proposal was closely based on Institute of Medicine recommendations published last year.

HHS officials on a conference call with reporters said they received about 200,000 comments on their draft regulation, which they characterized as a "significant" number and higher than normal. Their response was to allow the transition time for employers with religious affiliations because many appeared to need time to change their plans. Those seeking to delay complying with the regulation will have to attest to HHS that they qualify for an additional year, until Aug. 1, 2013, to implement the rule.

"We will work continue to work closely with religious groups during this transitional period to discuss their concerns," Sebelius said in a written statement.

Officials on the HHS call said an estimated one million to two million people work for nonprofits with religious affiliations and potentially would receive new contraceptive coverage under the rule. However, they said they were not able to immediately answer questions about how groups that don't comply might be penalized.

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