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Federal judge blocks new HHS workaround for birth-control coverage

Federal judge blocks new HHS workaround for birth-control coverage

A federal judge in Florida on Tuesday jumped into the latest round in the legal wrangling over a Patient Protection and Affordable Care Act provision involving birth-control coverage and how it applies to religious institutions.

U.S. District Judge James Moody Jr. temporarily blocked the federal government from enforcing on a Roman Catholic college a new workaround HHS had developed on the thorny issue.

Rather than requiring religious institutions to submit a form to their insurers saying they object to providing contraceptive coverage to their employees, the latest iteration of HHS' rule simply requires not-for-profit religious institutions to notify it that they opt out of the coverage.

In addition to notification, the rule also requires organizations to describe their health coverage plan for employees by name and type and provide contact information for the insurers — a provision meant to enable HHS to arrange for organizations' employees to still have contraceptive coverage for free.

Ave Maria University in Ave Maria, Florida, is challenging the new rule, however, saying it still violates the institution's religious beliefs by making it complicit in providing contraception to its employees. The Beckett Fund for Religious Liberty, which has been active in other contraceptive cases, is representing Ave Maria as well.

The judge blocked enforcement of the rules against Ave Maria until a trial on the matter.

Douglas Laycock, a University of Virginia law professor, said he believes the Ave Maria case is the first to have an opinion issued regarding the new rule.

Mr. Laycock predicts the Ave Maria case will eventually wind up at the U.S. Supreme Court, though he believes Ave Maria will not be successful.

“Ave Maria wants to say, 'We can't provide any link in the chain that leads to the contraception being provided,' but if you want an exemption you have to claim an exemption, and I think the court will see this is as a … nonprofit's attempt to prevent the insurance company from fulfilling its obligation,” Mr. Laycock said.

Ave Maria is challenging the insurer information requirement, saying it would violate the school's religious beliefs to do anything to help employees get contraception. Ave Maria sent HHS a written notice that it was claiming the exemption but did not include the additional information about its insurer.

“From Ave Maria's perspective, arranging for coverage and causing its insurer to provide payments for abortifacient and contraceptive products and services is no different than providing access directly,” according to a motion filed by lawyers for Ave Maria in September seeking preliminary injunction. “Ave Maria would still be complicit in what it believes to be a grave moral wrong.”

The U.S. Supreme Court in July, in Wheaton College v. Burwell, granted a preliminary injunction prohibiting the enforcement of a provision requiring religious charities opting out of the mandate to submit a certain form to health insurers meant to help those insurers still offer contraception coverage to employees.

Following that decision, HHS formulated the new rule requiring religious nonprofits seeking an exemption to instead send it information about their insurers.

The Ave Maria case is one of a number working its way through the court system over the new mandate.

Lisa Schencker writes for Modern Healthcare, a sister publication of Business Insurance.

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