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U.S. Supreme Court Agrees to Review Contraceptive Coverage Cases Challenging Accommodation Process

Zubik v. Burwell, U.S., No. 14-1418, review granted, 11/6/15; Priests for Life v. HHS, U.S., No. 14-1453, review granted, 11/6/15; Roman Catholic Archbishop of Washington v. Burwell, U.S., No. 14-1505, review granted, 11/6/15; E. Tex. Baptist Univ. v. Burwell, U.S., No. 15-35, review granted, 11/6/15; Little Sisters of the Poor Home for Aged, Denver, Colo. v. Burwell, U.S., No. 15-105, review granted, 11/6/15; S. Nazarene Univ. v. Burwell, U.S., No. 15-119, review granted, 11/6/15; Geneva Coll. v. Burwell, U.S., No. 15-191, review granted, 11/6/15

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The U.S. Supreme Court has agreed to review several cases addressing the enforcement of the contraceptive coverage mandate—under health care reform’s preventive services rules—against nonprofit religious organizations with objections to the mandate’s regulatory accommodation process (see our article). The accommodation is available to nonprofit organizations that hold themselves out as religious organizations, have religious objections to the mandate, and self-certify that they meet these criteria. Organizations that complete the process are relieved from penalties for failure to provide contraceptive coverage that the organization believes is objectionable, and their plan’s insurer or third-party administrator (TPA) is required to provide or arrange for the coverage instead. An eligible organization must either notify its insurer or TPA directly, or provide notice to HHS with the insurer’s or TPA’s contact information. A number of organizations have challenged this notice requirement, asserting that it impermissibly burdens their exercise of religion by effectively compelling them to facilitate, “trigger,” or be complicit in providing the coverage (see our article).

EBIA Comment: Although these cases all involve qualifying nonprofit religious organizations, the same accommodation process—which is described in detail in recent FAQ guidance (see our article)—is also available for certain closely held for-profit entities with a sincerely held religious objection to providing coverage of contraceptive services. Employers potentially eligible for the accommodation—and their insurers, TPAs, and advisors—will want to monitor further developments. The consolidated cases are expected to be heard by the Court this spring, with a decision likely to be issued in June. 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.