In a news release yesterday, the Department of Health and Human Services, the Labor Department and the Department of the Treasury announced that they were issuing an Advance Notice of Proposed Rulemaking to once more try to find an acceptable compromise with religiously affiliated institutions on the issue of contraceptive coverage in health care policies made available to their employees and (for colleges) their students. The Advance Notice takes several steps to try to meet concerns expressed, particularly by Catholic institutions.
First it makes clear the the narrow definition of religious employer used for the previously announced religious exemption from the contraception coverage mandate is intended only for purposes of the coverage requirements enacted by the Affordable Care Act:
Whether an employer is designated as “religious” for these purposes is not intended as a judgment about the mission, sincerity, or commitment of the employer, and the use of such designation is limited to defining the class that qualifies for this specific exemption. The designation will not be applied with respect to any other provision of the PHS Act, ERISA, or the Code, nor is it intended to set a precedent for any other purpose.The Advance Notice reiterates the Administration's previous proposal calling for insurance companies to furnish contraceptive coverage directly, at no additional cost, for employees of non-profit religious institutions that have religious objections to financing such coverage. The Advance Notice then moves on to tackle the problem of contraceptive coverage for the many non-profit religious organizations that self-insure, and thus lack an insurance company to furnish coverage. For these organizations, the third-party administrator of the group health plan or some other independent entity would arrange and finance contraceptive coverage. Religious non-profit groups would only have to self-certify their eligibility. The Advance Notice suggests a number of sources for revenue for the third-party administrator to use in providing the coverage.
The New York Times reports on the new proposal and says that it "virtually guarantees that birth control will remain an issue in the battle for the White House and Congress." [Thanks to Jonathan Adler at Volokh Conspiracy for the lead.]