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Comment period for HHS mandate ends

Megan Doyle | Tuesday, April 9, 2013


The 60-day period for public comment regarding a proposed compromise to the Affordable Care Act’s mandated contraceptive coverage expired Monday without any public response from Notre Dame. 

The White House proposed the compromise Feb. 1, crafting a deal that would potentially allow Notre Dame to issue a health insurance plan to its employees without directly providing birth control coverage or claiming it was indirectly paying for birth control coverage.

University Spokesman Dennis Brown declined to comment at this time on why the University did not submit a public comment during this response period. When the White House released the proposed compromise in February, Brown said Notre Dame administrators needed to fully analyze and discuss its contents. 

The proposal suggested a separate, individual private insurance policy that could provide contraceptive coverage at no cost for the employees of faith-based organizations.

“These proposed rules aim to provide women with contraceptive coverage without cost sharing and to protect eligible organizations from having to contract, arrange, pay or refer for contraceptive coverage to which they object on religious grounds,” the proposal stated.

The proposal is an amendment to rules regarding minimum insurance packages set forth by the Department of Health and Human Services (HHS) as part of its regulatory authority under the Affordable Care Act (ACA). 

If the administration finalizes this draft of the rule, objecting organizations could provide employees with a plan that does not offer contraceptive coverage. The health insurer providing the plan would then enroll those employees in a separate, stand-alone policy that only covers contraceptives at no extra cost.

The University, however, is self-insured. The proposed policy outlined several options for self-insured organizations, all of which allow the objecting employer to work with the company that administers its health benefits to avoid coverage of contraceptives. 

A third-party administrator would “automatically arrange separate individual health insurance policies for contraceptive coverage from an issuer providing such policies,” the proposal stated.

Last May, the University filed one of more than 40 religious liberty lawsuits from faith-based organizations to contest the constitutionality of the contraception mandate. The lawsuit stated the mandate would go against Church teachings and therefore violates the First Amendment, the Religious Freedom Restoration Act and other federal laws.

A federal judge dismissed Notre Dame’s lawsuit in early January, when U.S. District Court Judge Robert Miller Jr. ruled the University’s claim was not yet “ripe,” meaning it was not ready to be litigated. This was the case because the rule regarding contraceptive coverage had not been finalized. 

Despite the proposed changes, the United States Conference of Catholic Bishops (USCCB) continued to voice its own concerns about the mandate in a statement Feb. 7. 

USCCB president Cardinal Timothy Dolan of New York, who will visit Notre Dame in May as the 2013 Commencement speaker, claimed the compromise fell short but said the bishops looked forward to finding “acceptable solutions” to the mandate.

“[The proposed rule] appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education and Catholic charities,” Dolan said Feb. 7. “HHS offers what it calls an ‘accommodation’ rather than accepting the fact that these ministries are integral to our church and worthy of the same exemption as our Catholic churches.”

HHS will now review public comments and decide whether this draft of the rule will become final.