EBIA Weekly Newsletter

U.S. Supreme Court Vacates More Contraceptive Coverage Accommodation Challenges

   June 9, 2016

Catholic Health Care Sys. v. Burwell, 2016 WL 816249 (U.S. 2016); Univ. of Dallas v. Burwell, 2016 WL 2842462 (U.S. 2016); MI Catholic Conference v. Burwell, 2016 WL 932712 (U.S. 2016); Grace Schs. v. Burwell, 2016 WL 455142 (U.S. 2016); Univ. of Notre Dame v. Burwell, 2016 WL 2842460 (U.S. 2016); Burwell v. Dordt Coll., 2016 WL 2842446 (U.S. 2016)

In light of its recent decision in Zubik (see our Checkpoint article), the U.S. Supreme Court has vacated and remanded to the appellate courts six more cases in which nonprofit religious organizations have sued the federal government, challenging the accommodation to health care reform’s contraceptive coverage mandate. The organizations assert that the current accommodation’s notice requirement impermissibly burdens their exercise of religion by effectively compelling them to facilitate the provision of contraceptive coverage. Under the accommodation, an eligible organization that notifies its insurer or third-party administrator (TPA) of its objection, or notifies HHS and provides the insurer’s or TPA’s contact information, is relieved of penalties for failure to provide contraceptive coverage. Instead, the insurer or TPA provides or arranges for the coverage.

EBIA Comment: In Zubik, the Court vacated and remanded seven cases after briefings suggested that the organizations and the government could reach an agreement to modify the current accommodation. As in Zubik, the Court did not rule on the merits of these additional six cases, which are now headed back to the Second, Fifth, Sixth, Seventh, and Eighth Circuits. Although the accommodation also applies to certain closely held, for-profit employers (see our Checkpoint article), none of these cases sent back to the appellate courts so far has involved a challenge by a for-profit employer that is eligible for the accommodation. For more information, see EBIA’s Health Care Reform manual at Section XII.C.2 (“Required Coverage of Preventive Services”); see also EBIA’s Group Health Plan Mandates manual at Section XIII.C.2 (“Required Coverage of Preventive Services”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C.7 (“Preventive Health Services”).

Contributing Editors: EBIA Staff.