Obama religious exemption “compromise” not included in HHS finalized regulations

Yeah, you read that correctly. After President Obama announced his grand non-compromise on Friday, Feb. 10, Health and Human Services (HHS) Secretary Kathleen Sebelius published the finalized regulations not including the so-called Obama religious exemption compromise. Did you hear this in the main stream media?

Obama’s supposed abrupt shift was to demand health insurance companies provide goods and services for free. We’ve discussed that in other posts, so don’t bother commenting here about that. What I want you to note is the actual regulations dated Feb. 15 does not include the Obama compromise.

I bring this up because congress-critters, lefty bloggers and the media are out there claiming the compromise is in place. Just today, Ed Morrissey at Hot Air featured a video clip from Rep. Kathy Hochul (D-N.Y.) where she claimed…

Catholic institutions are being told that if they have a problem with this they certainly have the ability to have their insurance provider provide it for free without having it come from the institution.

This is absolutely not the case.

Here are the relevant sections of the Federal Register, dated Feb. 15. The published regulations are absolutely unchanged from their original Aug. 1, 2011 requirements.

As relevant here, the HRSA Guidelines require coverage, without cost sharing, for ‘‘[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,’’ as prescribed by a provider. Except as discussed below, non-grandfathered group health plans and health insurance issuers are required to provide coverage consistent with the HRSA Guidelines, without cost sharing, in plan years (or, in the individual market, policy years) beginning on or after August 1, 2012.

The Federal Register document goes on to mention the original guidelines, published in July 2010, received some feedback even though the HHS never asked for it. (Damnit!)

Although comments on the anticipated guidelines were not requested in the interim final regulations, the Departments received considerable feedback regarding which preventive services for women should be covered without cost sharing. Some commenters, including some religiously-affiliated employers, recommended that these guidelines include contraceptive services among the recommended women’s preventive services and that the attendant coverage requirement apply to all group health plans and health insurance issuers. Other commenters, however, recommended that group health plans sponsored by religiously-affiliated employers be allowed to exclude contraceptive services from coverage under their plans if the employers deem such services contrary to their religious tenets, noting that some group health plans sponsored by organizations with a religious objection to contraceptives currently contain such exclusions for that reason. In response to these comments, the Departments amended the interim final regulations to provide HRSA with discretion to establish an exemption for group health plans established or maintained by certain religious employers (and any group health insurance coverage provided in connection with such plans) with respect to any requirement to cover contraceptive services that they would otherwise be required to cover without cost sharing consistent with the HRSA Guidelines. The amended interim final regulations were issued and effective on August 1, 2011.

The document goes on to define who would “qualify” for the exemption (for example a church is exempted, but a Catholic hospital is not), and goes into detail providing information about comments received after the Aug. 1, 2001 final draft or whatever you want to call it. (This time, they asked for comments.) They elected to keep the Aug. 2011 language in place, but created a temporary enforcement safe harbor.

[T]he Departments are adopting the definition in the amended interim final regulations for purposes of these final regulations while also creating a temporary enforcement safe harbor, discussed below.

During the safe harbor period, they may consider changes to the…

… final regulations that would meet two goals— providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non- exempted, non-profit organizations’ religious objections to covering contraceptive services.

In other words, the Obama religious exemption compromise does not exist in current law. They published the regulations without the so-called compromise, but just put in what I describe as a cooling off period until …. after the election of course. UnitedHealthcare’s resource center concerning health care reform tries to keep up with what’s going on with requirements.

While the Final Rule adopts without modification the religious employer definition previously published in August 2011, the Departments will provide a one-year enforcement safe harbor for certain non-profit religious organizations that object to covering contraceptives and don’t otherwise satisfy the exemption. The safe harbor will be in effect until the first plan year that begins on or after Aug. 1, 2013. A religious organization seeking to qualify for the safe harbor for the group health plan it sponsors must meet all of the following criteria:

  1. The organization must be organized and operated as a non-profit entity.
  2. From Feb. 10, 2012, onward, the group health plan established or maintained by the organization must not have provided contraceptive coverage at any point consistent with applicable State law, because of the religious beliefs of the organization.
  3. The group health plan (or another entity on its behalf, such as a health insurance issuer or third-party administrator) must provide to participants of the plan notice stating that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after Aug. 1, 2012.
  4. The organization must self-certify that it satisfies items 1-3 above, and must document its self-certification in accordance with the procedures outlined in the HHS Bulletin.

Neither employers, nor group health plans, nor group health insurance issuers will be subject to any enforcement actions by the Departments (HHS, Labor and Treasury) for failing to cover contraceptive services without cost sharing if all the criteria outlined in the HHS Bulletin are met.

Do go and watch that video over at Hot Air. Rep. Hochul noted when it comes to U.S. Constitution limitations, they are not even referencing it.

Well, basically, we’re not looking to the Constitution on that aspect of it.

Yeah, that’s a problem…

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Steve McGough

Steve's a part-time conservative blogger. Steve grew up in Connecticut and has lived in Washington, D.C. and the Bahamas. He resides in Connecticut, where he’s comfortable six months of the year.


  1. JBS on February 27, 2012 at 5:50 pm

    I still think the Regime wants to have this controversy so that Obama can step in with a compromise acceptable to the Catholics, just before the election.
    Why else pick a fight with religious objectors without having a resolution in mind?
    Especially one that makes him look like the smartest one in the room. (All bow)

  2. Eric on February 27, 2012 at 7:44 pm

    Kathleen Sebelius and Barack Obama are a couple of skunks. ?Every time their lips move they’re telling another lie(s). ?This Obama administration is absolute scum!

  3. SoundOffSister on February 27, 2012 at 8:30 pm

    Gee, there is a surprise.??But not??like the surprise the Catholic Church and the insurance companies received when they learned of the “compromise”.? Here, neither the church nor the insurance companies knew of their “‘compromise” until the news media announced it.
    Compromise assumes, or at leat it uesd to, that all parties sat down at a table and, well, compromised.
    There has been no “compromise”? on this issue either in law or in fact.? The President has simply changed his rhetoric, not the law.
    Gee, yet another surprise.

    • ricbee on February 27, 2012 at 11:35 pm

      “Gee, there is a surprise” was just what I was gonna write. I really appreciate you reading this guvna so I don’t hafta hurt my poor little head.

  4. Dimsdale on February 27, 2012 at 9:12 pm

    As Michael Dukakis used to say when caught doing things like making up Social Security numbers for illegal aliens, “It was an oversight”.

  5. Tim-in-Alabama on February 28, 2012 at 8:51 am

    Obama re-compromised, as revealed in the finalized regulations.

  6. SeeingRed on February 28, 2012 at 8:54 am

    ‘Catholic institutions are being told that if they have a problem with this they certainly have the ability to have their insurance provider provide it for free without having it come from the institution.’

    Could have save a few words as the cut-to-the-chase version is more like: ? …if they have a problem with this they can certainly shove it….

  7. Murphy on February 28, 2012 at 9:04 am

    No co-pay huh? Wonder what drugs/procedures that puts it ahead of in importance?


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