On August 3, 2011, the Department of Health and Human Services published a revised interim final rule defining certain medical services as “preventive services” and specifying which employers would be entitled to utilize a religious objection exemption. The first interim final rule was issued on July 19, 2010.
In the ACA, Congress directed that certain highly charged policy choices be made by career government employees as if they were technical, scientific issues containing no moral content — what we call the scientization of policy. Scientization is popular among both government scientists (they get to set policy based on their personal views) and agency officials (they get to avoid taking responsibility for policy decisions by saying they are just following scientific recommendations). Congress also allowed the Department of Health and Human Services (HHS) to issue these rules in interim final form — that is, without prior publication of a proposed rule. This procedure tends to exacerbate controversy by short-circuiting normal public notice and comment.
The rule includes two provisions that seem assured of being highly controversial. First, it implicitly defines pregnancy as a disease for which the ACA’s “preventive services” mandate applies. Second, it includes a very limited exemption for employers who object to providing these services on moral or religious grounds. This exemption was not included in the 2010 interim final rule.
Both rules specify what free “preventive services” group insurance plans must include in plans that become effective on or after September 23, 2010. (Plans that are “grandfathered” are exempt.) The statutory authority to issue this regulation is codified in part A of title XXVII of the Public Health Service Act, the relevant provisions in boldface:
SEC. 2713. ƒ42 U.S.C. 300gg–13≈ COVERAGE OF PREVENTIVE HEALTH SERVICES.
(a) IN GENERAL.—A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—
(1) evidence-based items or services that have in effect a rating of ‘‘A’’ or ‘‘B’’ in the current recommendations of the United States Preventive Services Task Force;
(2) immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved;
(3) with respect to infants, children, and adolescents, evi- dence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration; and
(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
(5) for the purposes of this Act, and for the purposes of any other provisions of law, the current recommendations of the United States Preventive Service Task Force regarding breast cancer screening, mammography, and prevention shall be con- sidered the most current other than those issued in or around November 2009.
In short, Congress delegated the definition of “preventive services” to the United States Preventive Service Task Force. While nothing in the text would lead a casual reader to infer that HHS would interpret its authority this expansively, ambiguous statutory text invites expansive regulatory interpretation.
What is the Preventive Services Task Force? We blogged about it here in 2009 after it recommended less frequent use of mammograms for women with no risk factors for breast cancer, and here on the firestorm of controversy this recommendation produced.
The 2010 interim final rule discussed a number of health conditions but did not discuss pregnancy or related “preventive services.” However, pregnancy and related “preventive services” are the centerpiece of the 2011 interim final rule.
In this latest action, HHS incorporates by reference guidelines issued by the Preventive Services Task Force, which include the following item:
|Type of Preventive Service||HHS Guideline for Health Insurance Coverage||Frequency|
|Contraceptive methods and counseling.||All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with
These guidelines do not include documentation of the “evidence-based” (i.e., scientific) rationale.
CAN EMPLOYERS OPT-OUT IF THEY HAVE MORAL OR RELIGIOUS OBJECTIONS?
Generally, no. The interim final rule includes a limited exemption for certain religious employers:
§ 147.130 services. Coverage of preventive health services.
(a)* * *
(1) * * *
(iv) * * *
(A) * * *
(B) For purposes of this subsection, a ‘‘religious employer’’ is an organization that meets all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
It is not clear how many religious employers will qualify under this exemption. It is clear that no secular employers will qualify.
Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act; ACTION: Interim final rules with request for comments, 75 Fed. Reg. 41726 (July 19, 2010).
Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act; ACTION: Interim final rules with request for comments, 76 Fed. Reg. 46621 (August 3, 2011).