Birth control rule won’t apply to all student plans at colleges, White House says

March 16, 2012

The Obama administration’s controversial birth control health insurance coverage rule will not apply to a type of plan used by about 200,000 college and graduate students, officials said Friday.

The administration’s authority to issue the rule stemmed from the 2010 health-care law. Officials said they have concluded that for technical legal reasons the law’s reach does not extend to “self-insured” student plans, meaning those for which a college or university collects premiums directly from students, then uses the pool to pay for their health care.

At least 800,000 students are in a different class of plan: ones that their school purchases from insurance companies on their behalf. These plans will be subject to the full array of consumer provisions mandated by the health-care law, including the birth control rule — which requires plans for workers and students to cover preventive services including prescription birth control, emergency contraception and sterilizations, with no out-of-pocket charges.

Many religious institutions, including universities, have complained that the rule requires them to provide a health service that conflicts with their beliefs. For instance, Georgetown University excludes birth control coverage from its student plan. And because that policy is not a self-insured plan, the birth control mandate will soon apply.

That came as welcome news to Sandra Fluke, a law student at the university who has been lambasted by conservative media personalities — and celebrated by women’s health advocates and President Obama — for speaking out against her school’s policy.

However, Fluke expressed concern that schools with self-insured plans will still be able to deny their students contraceptive coverage.

“I’m confident that students . . . on campuses across the country are going to make sure their universities know that they need this coverage,” she said.

Also, on Friday, the Obama administration suggested various proposals for how it should deal with self-insuring employers that object to the birth control rule on religious grounds.

Such employers generally hire a third party — often an insurance company — to administer such plans. Officials said they are likely to require the third-party administrator to cover a worker’s birth control in cases where the employer refuses to do so.

It is still unclear how the administrators would pay for the coverage or what it would cost. And the administration floated three options for public comment. One idea is to require administrators to draw on revenue from other businesses they often also engage in — running disease management or drug benefit programs for instance.

Another is to grant them rebates from a special re-insurance fund that all administrators must pay into under a separate provision of the health-care law.

The final option is for the federal government to incentivize private, multi-state health insurance plans to step in with birth control coverage in cases where an employer refuses to do so.

The administration has already said how it would deal with religiously affiliated employers who buy their workers’ health plans from an insurance company rather than self-insure. Last month, it announced that if such employers refused to provide contraception coverage on religious grounds, their insurer would be required to offer it directly to workers without charging an additional premium.

That setup met with mixed reviews from religious groups. Some, such as the Catholic Health Association and Catholic Charities, said it largely resolved their concerns, even as they awaited the clarification on how it would be applied to self-insuring employers that was offered Friday. Others, including the U.S. Conference of Catholic Bishops and the Council for Christian Colleges and Universities, denounced the arrangement as little more than an accounting gimmick.

The proposals floated Friday were just as unacceptable, said Hannah Smith, senior legal counsel at the Becket Fund for Religious Liberty, a nonprofit firm representing religiously affiliated employers in four separate legal challenges to the rule.

“The shell game continues,” she said. “The administration knows full well that this mandate impinges on the religious freedom of individuals, and no amount of additional comments or rulemaking is going to fix that.”

Exclusively religious organizations such as churches are exempt from the rule. But when the administration first proposed it in August, it did not exclude religiously affiliated employers such as schools, universities, charities and hospitals. It crafted the accommodation for them only after an outcry from religious groups, Republicans and some Democrats.

Staff writer Sarah Kliff contributed to this report.

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