In Zubik v. Burwell, the justices vacated and remanded six federal appellate judgements on whether an accommodation (described below) for employers with religious objections to providing coverage for some or all contraception under the Affordable Care Act’s (ACA) preventive services coverage mandate violated the Religious Freedom Restoration Act (RFRA).  The Court took no position on the merits and stated that the parties should have the opportunity to find an approach that accommodates the petitioners’ religious exercise and ensures that women covered by the petitioners’ health plans receive full coverage for preventive care.   Essentially, as the Court awaits confirmation of a 9th justice they decided to kick the can down the proverbial road.

Enter the Departments of Health and Human Services (HHS), Labor, and Treasury, the agencies responsible for implementation of the ACA. On July 21, 2016, they released a “request for information” (RFI) intended to provide all interested stakeholders an opportunity to comment on several specific issues raised by the supplemental briefing and Supreme Court decision in Zubik v. Burwell.  Broadly, the RFI asks for suggestions on ways to further accommodate objections by religious non-profits to furnishing their employees coverage for some or all contraceptive services in their health plans.

Under the current accommodation, employers that object to providing contraceptives to their employees for religious reasons may either:

1. Self-certify their objection (EBSA Form 700) to their insurer or third-party administrator, or
2. Inform HHS of their objection and identify their insurer or third-party administrator so the government can authorize the insurer or third-party administrator to provide coverage.

The petitioners argued that the accommodation made them parties to the provision of the objectionable contraceptive services and burdened their religious exercise in violation of RFRA.

The RFI seeks comments in three general areas:

1. The procedure for invoking the accommodation, including whether using a particular form , stating that the employer is objecting on religious grounds, or giving a notice in writing raises any objections under RFRA.
2. Procedures for insured plans,  including whether the alternative procedure suggested by petitioners in their supplemental brief (upon a request for a plan without coverage for the objectionable contraceptives, the insurer would be required to provide the coverage separately) would resolve the issues under RFRA, what impact the approach would have on women’s ability to receive contraceptive coverage seamlessly, whether the approach raises issues under state insurance law, are there any other procedures that would not raise issues under RFRA.
3. Procedures for self-insured plans, which both the government and the petitioners agree were not addressed in the Court’s order. Including whether there are reasonable means under existing law to ensure that women covered by self-insured plans can receive contraceptive coverage and whether there are alternative methods for a third party administrator to provide the coverage without raising issues under RFRA.

Responses to the RFI are due by September 20, 2016. Although HHS asserts that the current accommodation remains consistent with RFRA, responses for this RFI may support objecting employers’ claims that new regulations need to be proposed.  Of course, there is always a possibility the RFI will not result in any movement and litigation will return again to the Supreme Court for resolution (by that time surely with a 9th justice).

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