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Rule doesn't end objections to health plan

By Joe Holloway jholloway@marshallnewsmessenger.com
Feb. 6, 2013 at 10 p.m.


East Texas Baptist University will continue its lawsuit against the Department of Health and Human Services over an HHS mandate that would provide emergency contraceptives to the university's employees free of charge.

ETBU President Dr. Samuel "Dub" Oliver said a rule change proposed by the White House on Friday that expanded the definition of "religious employers," who can opt out of the mandate if they have religious objections to contraception, did little to alleviate the university's concern over providing emergency contraceptives to its employees.

"Not as much has changed as it would appear from the public pronouncements," he said. "The way they would describe it is 'the Obama Administration changes the rule to accommodate religious institutions' but, when you look into it, it doesn't really do that."

The latest notice of proposed rulemaking (NPRM) eliminates the criteria that a "religious employer" has the inculcation of religious values as its purpose, primarily employ persons who share its religious tenets and primarily serve persons who share its religious tenets.

Oliver called it "the narrowest definition of a religious institution every propagated by the federal government" after the university first filed suit alongside Houston Baptist University in Oct. 2012.

Under the new NPRM, that definition is instead expanded to include any non-profit entity that holds itself out as a religious organization and opposes some or all of the mandated contraceptive services on religious grounds.

ETBU would seem to fit into those qualifications, but Oliver said the situation is more complex.

"People say you won because the government has said you don't have to provide it as a part of your health plan," he said. "That's what they're saying, but they've created this separate thing that we're going to have to indirectly fund or attach ourselves to."

In the case of most religious employers who opt out of the mandate, the NPRM would require that the employers' insurance companies to set up a separate policy for plan participants to get their contraception from free of charge.

According to the HHS fact sheet on the NPRM, "Issuers generally would find that providing such contraceptive coverage is cost neutral because they would be they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women's health and fewer childbirths."

ETBU, however, has a self-insured group health plan.

"That means we cover the medical expenses of our employees," said Oliver. "We have a third-party administrator to just handle those claims and the university devotes resources to that. So it's not insurance technically. It's just ETBU."

Oliver used himself as an example.

"When I go to the doctor I hand them a card that says Mutual Assurance Administrators and it looks like an insurance card but really what they are is they're administering our plan," he said. "ETBU pays MAA a percentage of the claims to administer our plan and do all the paperwork and the certifying and the preexisting conditions and the pre-certifications. All those things an insurance company would do, but with our money. It's all ETBU money."

The same fact sheet on the latest NPRM says organizations like ETBU would "notify the third party administrator, which in turn would automatically work with a health insurance issuer to provide separate, individual health insurance policies at no cost for participants" and that "the costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay."

Nonetheless, the third part administrator, the entity responsible for distributing the contraceptives, would still be employed by ETBU and that, said Oliver, is the main reason why the university still finds the latest proposed rule change unsatisfactory.

"That does not satisfy our objections to these drugs and our providing these drugs," he said. "Because, even if it's indirectly, we're still providing them. It's just more indirect now."

Oliver said that, while it's not what he would recommend because he thinks it's morally objectionable, what the government could do is make the contraceptives available to women directly.

"What the government could do is say, because it's such a compelling public interest to have these contraceptives available to women, the government will provide them and it'll be funded with tax dollars," he said. "Now we may have different feelings about what we would or would not like supported with our tax dollars. I may be offended that the government funds Planned Parenthood with tax dollars that come in. A Quaker or someone who is a Mennonite might be offended that the military is funded with tax dollars that come in.

"But we're separated from that. There's a barrier. ETBU wouldn't be providing it."

One thing the proposed rule change has ensured is that it's unlikely ETBU will opt to drop its health insurance coverage, one of the options it was looking at before it met the HHS' criteria for "religious employers" in the event the lawsuit didn't turn out in the university's favor.

"This ruling has kind of assured us that we don't have to drop health insurance coverage for our employees, so that's good news, particularly for our employees," said Oliver. "But the consequences for not participating in this other thing, that has not been outlined yet."

ETBU doesn't have to make any changes to its health plan until Jan. 2014, when its planned year ends, and Oliver expects the courts to have come to a decision before then.

"There a number of other lawsuits. I think there are 44 at this point with over 100 plaintiffs now," he said. "As that works its way through the courts, at some point the Supreme Court's going to take this on and they'll basically roll all these things up into one and decide the merits of the case or they'll do one for-profit and one non-profit. The Supreme Court's not going to hear 44 cases. They'll hear one, or maybe two. I think we'll have a decision by the courts, I hope a relief from the courts, before then."

Whatever they decide, Oliver said ETBU has no intention of providing emergency contraceptives as a part of its health coverage, in any capacity.

"Plan-B and Ella are the two that are offensive to us," he said. "We're not going to provide these as a part of our employee health plan directly or indirectly.

"It's not just an economic issue for us; it's a moral issue."

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