Biden administration still has a ACA moral exemptions rule in the pipeline

The U.S. Department of Health and Human Services is polishing a final rule that could change what employers or others have to do to get religious or moral exemptions from the usual Affordable Care Act preventive services benefits mandates.

The coming final rule could affect employers that oppose the idea of providing coverage for contraceptives, vaccines, annual checkups or other forms of preventive care that an individual, insured group or self-funded group usually must cover without imposing co-payment requirements or other cost-sharing requirements on the insureds.

HHS included the religious exemption project on its newly released spring regulatory agenda.

The history: HHS has to re-do the religious exemption rule because the U.S. Supreme Court found that an arrangement HHS created to ensure that employees of employers with religious objections to birth control could get coverage for birth control without the employers having to pay for the care.

The regulatory impact analysis meetings: Commenters have met with HHS officials to talk about how to measure and moderate the effects of the regulations, as opposed to the merits of the regulations.

The Alliance Defending Freedom, for example, told HHS analysts in a discussion of how contraceptive requirements would affect religious employers that nonprofit employers that strongly oppose birth control typically hire workers with similar views.

“A mandate on that kind of organization achieves nothing because the women who work there do not want the contraceptives the organization is not providing, and they have chosen to work for such an organization,” the alliance says in a document it provided in connection with a meeting with HHS regulation impact analysts.

Representatives from the Ethics and Public Policy Center said HHS should get data to support any new requirements related to birth control.

“HHS should be able to provide an exact number of how many complaints it has received from women unable to access contraception through their insurance plans and the number of those women who became pregnant and regretted it as a result,” center representatives said. “General complaints that insurance plans do not cover contraception are insufficient to establish need, especially if those plans are not subject to a religious or moral exemption.”

Other projects: HHS is also working on two other regulations that could affect employer plans: a No Surprises Act provider nondiscrimination regulation and a health data standards final rule.

The No Surprises Act regulation would forbid health plans from discriminating against midwives, physician assistants, nurse practitioners and other providers acting within the scope of their licenses or certifications when the providers were providing covered care.

The data standards regulation would update the standards that providers and health plans use to communicate information about a consumer’s eligibility for a health plan, a health care claim’s status and health care payment transactions.

Other projects still in progress are an agent and broker compensation disclosures final rule, a mental health parity regulation final rule and an explanation-of-benefits proposed rule.

The U.S. Labor Department’s Employee Benefits Security Administration is developing a number of retirement plan account and savings account regulations, and it’s working with HHS on the health insurance regulations.

A new wrinkle: The new regulatory to-do lists are the first federal agencies have released since the Supreme Court overturned the Chevron doctrine, which has helped establish federal agencies’ authority to interpret laws and determine whether people have complied with the laws.

It’s possible that agencies could stop working on some projects to look at the impact of the elimination of the Chevron doctrine on those projects.