Speaker 1: The Trump administration may be planning to roll back the
Speaker 1: Affordable Care Acts requirement that employer based health insurance cover
Speaker 1: a wide variety of contraceptive devices. Officials in the administration
Speaker 1: are apparently considering a draft regulation that would permit any
Speaker 1: company to refuse to provide contraceptive coverage on the ground
Speaker 1: that it has a moral or religious objection. In two
Speaker 1: thousand fourteen, the Supreme Court rule that closely held corporations
Speaker 1: with religious objections were exempt from the contraceptive mandate, but
Speaker 1: the requirement continues to plot to apply to almost all
Speaker 1: other employer based insurance. We're going to talk about the
Speaker 1: implications of this regulation if it were to be adopted,
Speaker 1: and what's likely to happen with um, Patricia Moran, who
Speaker 1: is of counsel at mince Levin. Patricia, welcome to the show.
Speaker 1: We're very happy to have you here. Um, this is uh,
Speaker 1: this would be quite a change from the Affordable Care
Speaker 1: Act and and it's contraceptive mandate. How would this draft
Speaker 1: regulation work in practice? Right? Well, it might be, UM,
Speaker 1: it might be a little bit helpful to to talk
Speaker 1: a little bit historically about about what's happened too, so
Speaker 1: we can see where things are now. So yeah, So,
Speaker 1: the Affordable Care Act required a wide variety of preventative
Speaker 1: services to be offered without cost sharing, meaning employers have
Speaker 1: to provide them no co or plans have to provide
Speaker 1: them no no co payment, no percentage payment, etcetera. And
Speaker 1: regulations that were promulgated said that preventative care includes a
Speaker 1: wide range of contraceptive methods. This immediately launched a huge
Speaker 1: controversy for a number of reasons under you know, with
Speaker 1: a number of employers and the the Obama administration immediately
Speaker 1: started back pedaling a little bit on that requirement. Um first,
Speaker 1: they exempted religious employers that's known as the steeple exemption. Basically,
Speaker 1: churches and houses of worship didn't have to provide this
Speaker 1: at all under their plans to their employees, so total exemption.
Speaker 1: Then they they stepped back a little further and softened
Speaker 1: it and said that nonprofit religious organizations opposing contraception due
Speaker 1: to religious objections also didn't have to offer it, but
Speaker 1: there was an accommodation mechanism where they they didn't have
Speaker 1: to offer the coverage, but they had to communicate with
Speaker 1: their insurers and their third party administrators who would then
Speaker 1: offer the coverage. And the idea was to create this
Speaker 1: screen between the employer and the offer of coverage, but
Speaker 1: their employees would still get it after some litigation. You've
Speaker 1: probably heard of the hobby lobby case, which is the
Speaker 1: big one people know about. This accommodation was extended to
Speaker 1: private for profit closely held entities, so private companies, but
Speaker 1: they had to be uh fairly small held by um
Speaker 1: a small number of owners. And again this this so
Speaker 1: called accommodation, it wasn't a flat out exemption. Employers still
Speaker 1: had to apply to their t p A or insure
Speaker 1: the insurer would then offer it. The employer had to
Speaker 1: pass an internal resolution. Uh, there are a number of
Speaker 1: steps the employer had to take to to get this accommodation.
Speaker 1: So what is this new draft regulation if it went
Speaker 1: into effect, what we did provide for right? So, so
Speaker 1: two things, um, you know again we talked about like
Speaker 1: who's whose exempt? Now really only churches get the total
Speaker 1: exemption and nonprofit religious organizations and closely held companies get
Speaker 1: an accommodation. But their steps they have to take, and
Speaker 1: this regulation takes it further. Um. First of all, it
Speaker 1: says any kind of employer. Um it could be um
Speaker 1: uh publicly held company, doesn't have to be a closely
Speaker 1: held or could be a private company that's not closely held,
Speaker 1: a larger private company. Any kind of employer can get
Speaker 1: an exemption, so the accommodation process goes away, and there's
Speaker 1: no none of these steps required. That that's optional. You
Speaker 1: can do it if you want to, but you don't
Speaker 1: have to. It's it's really just a broad exemption for
Speaker 1: any kind of employer who has this this sort of
Speaker 1: moral objection to contraception. So, Patricia, is it legal for
Speaker 1: the Health and Human Services or Treasury and Labor departments
Speaker 1: to write a rule like this and at no point
Speaker 1: is it going to be voted on by representatives and
Speaker 1: it just goes into effect like that? Well, it's you know,
Speaker 1: that's that's an interesting question. So they So, first of all, Um,
Speaker 1: you did say that this this was a leaked regulation.
Speaker 1: It's not actually in the federal regis there yet? You know,
Speaker 1: we're not sure what what this will look like if
Speaker 1: and when it becomes the real thing. Right, But the
Speaker 1: but the item that was linked leaked is called an
Speaker 1: interim final rule. And and that's interesting because usually when
Speaker 1: you regulate. There's a process. You issue a proposed regulation,
Speaker 1: people have an opportunity to comment, to send in letters.
Speaker 1: The agencies review those comments and consider them and then
Speaker 1: issue a final regulation. And sometimes there's even more steps
Speaker 1: in between their um the proposed regulation can be withdrawn
Speaker 1: and repropos etcetera. And what the interim final rule does
Speaker 1: is it shortcuts that whole process and and basically it says,
Speaker 1: when we issue this, it's it's final, it's effective and
Speaker 1: employees sorry. The agencies can do that in a couple
Speaker 1: of cases. They can do that if it's if it's
Speaker 1: um uh, if it's okay to do so specifically under
Speaker 1: the laws that you're promulgating under. In this case it
Speaker 1: actually is. But you can also do it if there's
Speaker 1: good cause um because it's it would be contrary to
Speaker 1: the public interest to go through the whole process. So
Speaker 1: it sounds like it sounds like we have a long
Speaker 1: way to go, but unfortunately we don't have a lot
Speaker 1: of time left in this segment, so we're gonna have
Speaker 1: to leave it there. Patricia. Thank you to Patricia Moran
Speaker 1: of Min's Leavin for being on the Bloomberg Law Program today.