The Trump administration may be planning to roll back the Affordable Care Acts requirement that employer based health insurance cover a wide variety of contraceptive devices. Officials in the administration are apparently considering a draft regulation that would permit any company to refuse to provide contraceptive coverage on the ground
that it has a moral or religious objection. In two thousand fourteen, the Supreme Court rule that closely held corporations with religious objections were exempt from the contraceptive mandate, but the requirement continues to plot to apply to almost all other employer based insurance. We're going to talk about the implications of this regulation if it were to be adopted, and what's likely to happen with um, Patricia Moran, who is of counsel at mince Levin. Patricia, welcome to the show.
We're very happy to have you here. Um, this is uh, this would be quite a change from the Affordable Care Act and and it's contraceptive mandate. How would this draft regulation work in practice? Right? Well, it might be, UM, it might be a little bit helpful to to talk a little bit historically about about what's happened too, so
we can see where things are now. So yeah, So, the Affordable Care Act required a wide variety of preventative services to be offered without cost sharing, meaning employers have to provide them no co or plans have to provide them no no co payment, no percentage payment, etcetera. And regulations that were promulgated said that preventative care includes a
wide range of contraceptive methods. This immediately launched a huge controversy for a number of reasons under you know, with a number of employers and the the Obama administration immediately started back pedaling a little bit on that requirement. Um first, they exempted religious employers that's known as the steeple exemption. Basically, churches and houses of worship didn't have to provide this at all under their plans to their employees, so total exemption.
Then they they stepped back a little further and softened it and said that nonprofit religious organizations opposing contraception due to religious objections also didn't have to offer it, but there was an accommodation mechanism where they they didn't have to offer the coverage, but they had to communicate with their insurers and their third party administrators who would then offer the coverage. And the idea was to create this screen between the employer and the offer of coverage, but
their employees would still get it after some litigation. You've probably heard of the hobby lobby case, which is the big one people know about. This accommodation was extended to private for profit closely held entities, so private companies, but they had to be uh fairly small held by um a small number of owners. And again this this so called accommodation, it wasn't a flat out exemption. Employers still had to apply to their t p A or insure the insurer would then offer it. The employer had to
pass an internal resolution. Uh, there are a number of steps the employer had to take to to get this accommodation. So what is this new draft regulation if it went into effect, what we did provide for right? So, so two things, um, you know again we talked about like who's whose exempt? Now really only churches get the total exemption and nonprofit religious organizations and closely held companies get an accommodation. But their steps they have to take, and
this regulation takes it further. Um. First of all, it says any kind of employer. Um it could be um uh publicly held company, doesn't have to be a closely held or could be a private company that's not closely held, a larger private company. Any kind of employer can get an exemption, so the accommodation process goes away, and there's no none of these steps required. That that's optional. You can do it if you want to, but you don't
have to. It's it's really just a broad exemption for any kind of employer who has this this sort of moral objection to contraception. So, Patricia, is it legal for the Health and Human Services or Treasury and Labor departments to write a rule like this and at no point is it going to be voted on by representatives and it just goes into effect like that? Well, it's you know, that's that's an interesting question. So they So, first of all, Um, you did say that this this was a leaked regulation.
It's not actually in the federal regis there yet? You know, we're not sure what what this will look like if and when it becomes the real thing. Right, But the but the item that was linked leaked is called an interim final rule. And and that's interesting because usually when you regulate. There's a process. You issue a proposed regulation, people have an opportunity to comment, to send in letters. The agencies review those comments and consider them and then
issue a final regulation. And sometimes there's even more steps in between their um the proposed regulation can be withdrawn and repropos etcetera. And what the interim final rule does is it shortcuts that whole process and and basically it says, when we issue this, it's it's final, it's effective and employees sorry. The agencies can do that in a couple of cases. They can do that if it's if it's um uh, if it's okay to do so specifically under
the laws that you're promulgating under. In this case it actually is. But you can also do it if there's good cause um because it's it would be contrary to the public interest to go through the whole process. So it sounds like it sounds like we have a long way to go, but unfortunately we don't have a lot of time left in this segment, so we're gonna have to leave it there. Patricia. Thank you to Patricia Moran of Min's Leavin for being on the Bloomberg Law Program today.