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Tenth and Eleventh Circuits Grant Injunctions Against ACA Self-Certification Requirements Regarding Contraceptive Coverage

The Tenth and Eleventh Circuits have granted stays pending appeals in lawsuits brought by religious non-profit institutions challenging the Affordable Care Act (ACA) contraceptive coverage accommodation. In so doing, the two appellate courts held that the nonprofit religious groups demonstrated a likelihood of success on the merits of their claims that the ACA substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (RFRA). ( Diocese of Cheyenne v. Burwell (2014, CA10) 2014 WL 19118732014 WL 1911873; Eternal Word Television Network, Inc. v. Secretary, U.S. Department of Health and Human Services (2014, CA11) 2014 WL 29319402014 WL 2931940 ).

The accommodation.

The ACA requires providers of health insurance, including companies that administer self-insured employer health plans, to cover certain preventive services without cost to the insured. With respect to women, such coverage includes all Food and Drug Administration (FDA) approved contraceptive methods.

An exemption from the guidelines for religious institutions and other houses of worship was narrowly drafted so as to exclude religious institutions incorporated as nonprofit rather than religious organizations. DOL later promulgated and enlarged the exemption to bring religious nonprofits within its scope.

To exercise a religious nonprofit’s right to opt out of having to pay for contraceptive coverage either directly or indirectly through a health insurer, nonprofit religious organizations must complete EBSA Form 700, a short form containing the following sentence: “I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.” (See Pension and Benefits Week ¶  9  04/07/2014.) EBSA Form 700 requires that an organization or its plan must provide a copy of the certification to the plan’s health insurance issuer (for insured health plans), or a third-party administrator (for self-insured health plans), in order for the plan to be accommodated with respect to the contraceptive coverage requirement.

The decisions.

The Tenth Circuit case involved a Roman Catholic Diocese and several Catholic organizations which sought to enjoin provisions of the ACA and related regulations pertaining to the provision to their employees through a group health plan, abortion-producing products, contraception, sterilization, and related education and counseling services. The Tenth Circuit here held as follows: provided the non-profit organizations inform the Secretary of Health and Human Services (HHS) in writing that they are nonprofit organizations that hold themselves out as religious organizations and have religious objections to providing coverage for contraceptive services, HHS, DOL and the Treasury are enjoined from enforcing the challenged ACA provisions and related regulations pending further order of the court. To satisfy the condition for the injunction pending appeal, the nonprofit organizations need not use EBSA Form 700 nor send copies to third-party administrators, according to the Tenth Circuit.

In the Eleventh Circuit, the Eternal Word Television Network (Network) claimed that it “is prohibited by its religion from signing, submitting, or facilitating the transfer of the government required certification” necessary to opt out of the contraceptives coverage requirement. By requiring the Network to deliver EBSA Form 700 to the Network’s third-party administrator of its health insurance plan, the Network said the United States was attempting to force the Network “to forego religious precepts” and instead, contrary to Catholic teachings, materially cooperate in evil. Upon a failure to deliver EBSA Form 700, the Network would face $12,775,000 in penalties each year. Given the U.S. Supreme Court’s Hobby Lobby decision rendered the same day (see Pension and Benefits Week ¶  5  07/07/2014 ), the Eleventh Circuit granted the Network an injunction pending appeal.

RIA observation: The Tenth and Eleventh Circuit decisions stand in contrast to holdings by the Sixth and Seventh Circuits (see Pension and Benefits Week ¶  10  06/23/2014; and Pension and Benefits Week ¶  9  04/07/2014, respectively).
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