1
00:00:00,080 --> 00:00:03,200
Speaker 1: The Trump administration may be planning to roll back the

2
00:00:03,240 --> 00:00:06,600
Speaker 1: Affordable Care Acts requirement that employer based health insurance cover

3
00:00:06,640 --> 00:00:10,920
Speaker 1: a wide variety of contraceptive devices. Officials in the administration

4
00:00:10,920 --> 00:00:14,120
Speaker 1: are apparently considering a draft regulation that would permit any

5
00:00:14,160 --> 00:00:17,080
Speaker 1: company to refuse to provide contraceptive coverage on the ground

6
00:00:17,160 --> 00:00:19,960
Speaker 1: that it has a moral or religious objection. In two

7
00:00:19,960 --> 00:00:23,360
Speaker 1: thousand fourteen, the Supreme Court rule that closely held corporations

8
00:00:23,360 --> 00:00:27,080
Speaker 1: with religious objections were exempt from the contraceptive mandate, but

9
00:00:27,120 --> 00:00:30,000
Speaker 1: the requirement continues to plot to apply to almost all

10
00:00:30,040 --> 00:00:33,559
Speaker 1: other employer based insurance. We're going to talk about the

11
00:00:33,600 --> 00:00:37,280
Speaker 1: implications of this regulation if it were to be adopted,

12
00:00:37,280 --> 00:00:41,080
Speaker 1: and what's likely to happen with um, Patricia Moran, who

13
00:00:41,159 --> 00:00:44,760
Speaker 1: is of counsel at mince Levin. Patricia, welcome to the show.

14
00:00:44,760 --> 00:00:47,760
Speaker 1: We're very happy to have you here. Um, this is uh,

15
00:00:47,920 --> 00:00:50,480
Speaker 1: this would be quite a change from the Affordable Care

16
00:00:50,520 --> 00:00:54,400
Speaker 1: Act and and it's contraceptive mandate. How would this draft

17
00:00:54,440 --> 00:00:59,440
Speaker 1: regulation work in practice? Right? Well, it might be, UM,

18
00:00:59,480 --> 00:01:02,080
Speaker 1: it might be a little bit helpful to to talk

19
00:01:02,120 --> 00:01:05,840
Speaker 1: a little bit historically about about what's happened too, so

20
00:01:05,880 --> 00:01:09,440
Speaker 1: we can see where things are now. So yeah, So,

21
00:01:09,480 --> 00:01:14,280
Speaker 1: the Affordable Care Act required a wide variety of preventative

22
00:01:14,480 --> 00:01:18,360
Speaker 1: services to be offered without cost sharing, meaning employers have

23
00:01:18,440 --> 00:01:21,679
Speaker 1: to provide them no co or plans have to provide

24
00:01:21,680 --> 00:01:26,720
Speaker 1: them no no co payment, no percentage payment, etcetera. And

25
00:01:26,959 --> 00:01:31,600
Speaker 1: regulations that were promulgated said that preventative care includes a

26
00:01:31,640 --> 00:01:37,480
Speaker 1: wide range of contraceptive methods. This immediately launched a huge

27
00:01:37,520 --> 00:01:41,560
Speaker 1: controversy for a number of reasons under you know, with

28
00:01:41,640 --> 00:01:47,000
Speaker 1: a number of employers and the the Obama administration immediately

29
00:01:47,000 --> 00:01:53,240
Speaker 1: started back pedaling a little bit on that requirement. Um first,

30
00:01:53,320 --> 00:01:59,360
Speaker 1: they exempted religious employers that's known as the steeple exemption. Basically,

31
00:01:59,400 --> 00:02:02,080
Speaker 1: churches and houses of worship didn't have to provide this

32
00:02:02,240 --> 00:02:06,200
Speaker 1: at all under their plans to their employees, so total exemption.

33
00:02:07,200 --> 00:02:10,959
Speaker 1: Then they they stepped back a little further and softened

34
00:02:11,000 --> 00:02:16,040
Speaker 1: it and said that nonprofit religious organizations opposing contraception due

35
00:02:16,080 --> 00:02:19,560
Speaker 1: to religious objections also didn't have to offer it, but

36
00:02:19,639 --> 00:02:25,040
Speaker 1: there was an accommodation mechanism where they they didn't have

37
00:02:25,120 --> 00:02:27,720
Speaker 1: to offer the coverage, but they had to communicate with

38
00:02:27,760 --> 00:02:31,040
Speaker 1: their insurers and their third party administrators who would then

39
00:02:31,080 --> 00:02:33,840
Speaker 1: offer the coverage. And the idea was to create this

40
00:02:34,040 --> 00:02:39,280
Speaker 1: screen between the employer and the offer of coverage, but

41
00:02:39,280 --> 00:02:43,040
Speaker 1: their employees would still get it after some litigation. You've

42
00:02:43,040 --> 00:02:45,239
Speaker 1: probably heard of the hobby lobby case, which is the

43
00:02:45,280 --> 00:02:48,880
Speaker 1: big one people know about. This accommodation was extended to

44
00:02:49,960 --> 00:02:54,080
Speaker 1: private for profit closely held entities, so private companies, but

45
00:02:54,120 --> 00:02:58,359
Speaker 1: they had to be uh fairly small held by um

46
00:02:58,480 --> 00:03:03,920
Speaker 1: a small number of owners. And again this this so

47
00:03:03,960 --> 00:03:11,200
Speaker 1: called accommodation, it wasn't a flat out exemption. Employers still

48
00:03:11,280 --> 00:03:15,000
Speaker 1: had to apply to their t p A or insure

49
00:03:15,080 --> 00:03:17,800
Speaker 1: the insurer would then offer it. The employer had to

50
00:03:17,840 --> 00:03:21,080
Speaker 1: pass an internal resolution. Uh, there are a number of

51
00:03:21,080 --> 00:03:25,680
Speaker 1: steps the employer had to take to to get this accommodation.

52
00:03:25,880 --> 00:03:28,480
Speaker 1: So what is this new draft regulation if it went

53
00:03:28,520 --> 00:03:31,880
Speaker 1: into effect, what we did provide for right? So, so

54
00:03:32,080 --> 00:03:34,880
Speaker 1: two things, um, you know again we talked about like

55
00:03:34,880 --> 00:03:39,120
Speaker 1: who's whose exempt? Now really only churches get the total

56
00:03:39,160 --> 00:03:45,320
Speaker 1: exemption and nonprofit religious organizations and closely held companies get

57
00:03:45,320 --> 00:03:48,440
Speaker 1: an accommodation. But their steps they have to take, and

58
00:03:48,600 --> 00:03:51,760
Speaker 1: this regulation takes it further. Um. First of all, it

59
00:03:51,840 --> 00:03:56,040
Speaker 1: says any kind of employer. Um it could be um

60
00:03:57,320 --> 00:04:00,160
Speaker 1: uh publicly held company, doesn't have to be a closely

61
00:04:00,200 --> 00:04:02,720
Speaker 1: held or could be a private company that's not closely held,

62
00:04:02,720 --> 00:04:06,800
Speaker 1: a larger private company. Any kind of employer can get

63
00:04:06,880 --> 00:04:13,240
Speaker 1: an exemption, so the accommodation process goes away, and there's

64
00:04:13,280 --> 00:04:16,400
Speaker 1: no none of these steps required. That that's optional. You

65
00:04:16,480 --> 00:04:18,039
Speaker 1: can do it if you want to, but you don't

66
00:04:18,080 --> 00:04:21,880
Speaker 1: have to. It's it's really just a broad exemption for

67
00:04:22,680 --> 00:04:26,680
Speaker 1: any kind of employer who has this this sort of

68
00:04:27,440 --> 00:04:34,440
Speaker 1: moral objection to contraception. So, Patricia, is it legal for

69
00:04:34,560 --> 00:04:38,320
Speaker 1: the Health and Human Services or Treasury and Labor departments

70
00:04:38,360 --> 00:04:42,360
Speaker 1: to write a rule like this and at no point

71
00:04:42,560 --> 00:04:46,359
Speaker 1: is it going to be voted on by representatives and

72
00:04:46,440 --> 00:04:50,920
Speaker 1: it just goes into effect like that? Well, it's you know,

73
00:04:51,000 --> 00:04:54,800
Speaker 1: that's that's an interesting question. So they So, first of all, Um,

74
00:04:54,839 --> 00:04:57,840
Speaker 1: you did say that this this was a leaked regulation.

75
00:04:58,120 --> 00:05:01,599
Speaker 1: It's not actually in the federal regis there yet? You know,

76
00:05:01,680 --> 00:05:05,000
Speaker 1: we're not sure what what this will look like if

77
00:05:05,040 --> 00:05:08,719
Speaker 1: and when it becomes the real thing. Right, But the

78
00:05:09,000 --> 00:05:11,560
Speaker 1: but the item that was linked leaked is called an

79
00:05:11,560 --> 00:05:15,120
Speaker 1: interim final rule. And and that's interesting because usually when

80
00:05:15,200 --> 00:05:19,839
Speaker 1: you regulate. There's a process. You issue a proposed regulation,

81
00:05:20,560 --> 00:05:24,960
Speaker 1: people have an opportunity to comment, to send in letters.

82
00:05:25,320 --> 00:05:29,080
Speaker 1: The agencies review those comments and consider them and then

83
00:05:29,160 --> 00:05:32,520
Speaker 1: issue a final regulation. And sometimes there's even more steps

84
00:05:32,520 --> 00:05:36,440
Speaker 1: in between their um the proposed regulation can be withdrawn

85
00:05:36,520 --> 00:05:40,360
Speaker 1: and repropos etcetera. And what the interim final rule does

86
00:05:40,680 --> 00:05:43,960
Speaker 1: is it shortcuts that whole process and and basically it says,

87
00:05:44,360 --> 00:05:49,159
Speaker 1: when we issue this, it's it's final, it's effective and

88
00:05:49,880 --> 00:05:53,239
Speaker 1: employees sorry. The agencies can do that in a couple

89
00:05:53,279 --> 00:05:56,120
Speaker 1: of cases. They can do that if it's if it's

90
00:05:56,240 --> 00:06:01,479
Speaker 1: um uh, if it's okay to do so specifically under

91
00:06:01,560 --> 00:06:04,080
Speaker 1: the laws that you're promulgating under. In this case it

92
00:06:04,120 --> 00:06:06,760
Speaker 1: actually is. But you can also do it if there's

93
00:06:06,800 --> 00:06:11,520
Speaker 1: good cause um because it's it would be contrary to

94
00:06:11,520 --> 00:06:13,560
Speaker 1: the public interest to go through the whole process. So

95
00:06:13,680 --> 00:06:15,599
Speaker 1: it sounds like it sounds like we have a long

96
00:06:15,640 --> 00:06:17,400
Speaker 1: way to go, but unfortunately we don't have a lot

97
00:06:17,600 --> 00:06:19,960
Speaker 1: of time left in this segment, so we're gonna have

98
00:06:19,960 --> 00:06:22,360
Speaker 1: to leave it there. Patricia. Thank you to Patricia Moran

99
00:06:22,480 --> 00:06:25,919
Speaker 1: of Min's Leavin for being on the Bloomberg Law Program today.