In Zubik v. Burwell, the Supreme Court vacated and remanded eight federal appellate judgements on whether an accommodation for employers that object to providing contraceptive coverage under the Affordable Care Act's preventive services coverage mandate violated the Religious Freedom Restoration Act. (RFRA) Seven of the courts had upheld the accommodation while one (the Eighth Circuit) had struck it down.
The Supreme Court's remand order asked the appellate courts to afford the parties:
an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans "receive full and equal health coverage, including contraceptive coverage."
The Court had earlier, following oral argument in the case, asked the parties to brief the question of:
whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners' insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage.
It concluded based on the briefs it received that there might be an approach that would be acceptable to the plaintiff employers but not compromise seamless contraceptive coverage for women covered by their group health plans. (The cases also concern contraceptive coverage for students covered by student health plans, but the Supreme Court's deliberations have focused on coverage under group health plans.)
On July 21, 2016 the Departments of Health and Human Services, Labor, and Treasury, which are responsible for implementation of the ACA, released a "request for information" (RFI) seeking further input from interested parties on possible alternatives to the current accommodation. The RFI requests a response from entities that object to the current accommodation; it also asks other stakeholders who are not parties to the litigation, such as insurers, third-party administrators, and women who need contraceptives, how possible accommodations would affect them.
Under the current accommodation, employers that object to providing contraceptives to their employees for religious reasons may either
- self-certify their objection to their insurer or third-party administrator using an EBSA form 700, or
- inform HHS of their objection identifying their insurer or TPA so that it can in turn authorize the insurer or TPA to provide coverage.
The agencies maintain that this complies with the requirements of RFRA, noting that eight of the nine appellate courts that have now considered the accommodation held that it does not substantially burden the plaintiffs' exercise of religion; the agencies also maintain, as some of those courts also held, that the accommodation is the least restrictive means of furthering the government's compelling interest in ensuring women's seamless access to contraceptive coverage. Nevertheless, the RFI states, because of the government's commitment to religious freedom and desire to find an acceptable accommodation reconciling the beliefs of employers and the interests of female employees, it is enquiring further whether another accommodation might be acceptable to all parties.
What's In The RFI?
Alternative Accommodations
The RFI focuses on three issues. First, is there an alternative to the two methods of providing notice of a religious objection described above that religiously objecting employers might find more acceptable? The plaintiffs had proposed that they would simply contract with insurers for coverage that did not include contraceptives without providing any additional notice to their insurer, the federal government, or their employees. The insurer would then separately notify employees that it would provide contraceptive coverage to covered women without cost and independent of the employer's health plan.
The departments ask whether this accommodation would be acceptable to objecting organizations, and if not, what further procedures or systems would work. The RFI also asks if organizations specifically object on RFRA grounds to informing their insurers that they object to contraceptive coverage "on religious grounds," or to a requirement that the notice to the issuer be provided in writing or using a particular form. The RFI asks insurers and other stakeholders whether this approach would be burdensome for them and, if so, how the burden might be mitigated. In particular, what effect would this proposed accommodation have on the access of women to seamless contraceptive coverage?
Contraceptive-Only Policies
Second, the Zubik plaintiffs had proposed that contraceptive coverage be provided to women covered by their group health insurance plans through insurance policies that only covered contraceptives and in which the women would have to affirmatively enroll. The RFI asks whether this alternative procedure would in fact resolve the RFRA claims of objecting organizations. It also asks if this procedure would be feasible for health insurers and permitted under state laws. The RFI further enquires what effect this procedure would have on the access of women covered by group health plans to obtain seamless coverage to contraceptive services. And again, it asks whether there might be acceptable alternatives other than separate insurance policies for resolving the RFRA objections of objecting parties.
Self-Insured Plans
Third, and finally, the RFI addresses the issue of self-insured plans, which was not addressed by the Supreme Court's supplemental briefing order. While insurers have an independent legal obligation to provide contraceptive coverage, third-party administrators that administer self-insured plans must be authorized either by the group health plan sponsor or by the government to provide particular forms of coverage, including contraceptive coverage. This authorization is provided by the current accommodation, but is rejected by the objecting organizations.
The RFI asks whether there is any reasonable alternative means through which women covered by the self-insured plans maintained by the objecting employers can receive contraceptive coverage through the same third-party administrators that administer the rest of their group health plans and that would be acceptable to objecting organizations. Alternatively, is there any other approach that would satisfy the RFRA objections of objecting organizations and yet provide coverage through their third-party administrators?
At this point, eight cases involving the contraceptive issue have been remanded to eight separate appellate court to find some kind of compromise solution to the intractable issue that the Supreme Court dodged, no doubt crippled by its lack of a majority approach on the issues in litigation. It is difficult to see how the appellate courts are to proceed. Is each to order separate briefs and separately arrive at a new accommodation?
In the meantime, the Supreme Court has blocked the government from imposing penalties or fines on the plaintiffs for failing to provide the notice to the government required by the accommodation, since it already knows of their objection from the litigation. But the Court also specified that "[n]othing in [its] opinion . . . is to affect the ability of the Government to ensure that women covered by [plaintiffs] health plan 'obtain, without cost, the full range of FDA approved contraceptives.'"
The RFI signals the intent of the government to move forward on the issue. The public has 60 days from the date of Federal Register publication to respond to the RFI. The RFI would need to be followed by a proposed rule and another comment period before any new accommodation can be implemented. It is likely that this issue will have to be resolved by the next administration.
Income Data-Matching Thresholds
On July 21, 2016, CMS also released a guidance announcing a change in how it is going to verify household income when applicants apply through the marketplaces for advance premium tax credits and cost-sharing reduction payments. When applicants apply for financial assistance, HHS verifies their eligibility from trusted data sources such as tax filings from prior years. When income information is not available from trusted data sources or attested income varies significantly from that shown by other sources, the marketplace generates a "data matching issue" and the applicant is required to provide documentation to verify attested income.
Until now a data matching issue has been generated if the income attested by an applicant was more than 10 percent less than income shown by trusted data sources. When the income that applicants claim is significantly less than the amount shown by data sources, there is the possibility that the applicants will receive more financial assistance than they are entitled to and will have to pay the excess back at tax filing time. The 10 percent threshold has proven too narrow, however, and in the 2017 payment rule HHS stated that it was going to change the threshold. The July 21 guidance effectuates this intention.
As of the 2017 open enrollment period, the federally facilitated marketplace will not require additional documentation if the annual income attested by an applicant is no more than 25 percent or $6,000 (whichever is greater) lower than the income shown from trusted data sources. Of course, consumers who receive more financial assistance than they are entitled to will have to pay it back at filing time, subject to repayment limits. If no information is available from trusted data sources, HHS will still require documentation.
State-based marketplaces may propose to HHS thresholds for the generation of data matching issues that do not exceed the 25 percent or $6,000 threshold applied by the FFM but are not less than the current 10 percent threshold.
from Health Affairs BlogHealth Affairs Blog http://ift.tt/29QE2d6
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