Essential Health Benefits and the Coverage of Contraceptives

A full and formal definition of essential health benefits (EHBs) is not yet available from HHS. Meanwhile, churches and church-affiliated benefit sponsors have strongly objected to the Administration's attempt to force them to cover contraceptives and "morning after" pills.

The Administration is now seeking comments by June 19 on how to address the objections - - while still ensuring that plan participants get contraceptive coverage. In other words, this Administration still wants to eat its cake and have it, too.

The Administration also recently released a set of “Frequently Asked Questions” that suggests employers determine EHBs using one of the HHS-designated benchmark plans. These FAQ's are found here (.pdf download).

Question/Response #10 is revealing:

First part of Q10. How would the intended EHB policy affect self-insured group health plans, grandfathered group health plans, and the large group market health plans?

A: Under the Affordable Care Act, self-insured group health plans, large group market health plans, and grandfathered health plans are not required to offer EHB.

The plain meaning of this sentence seems to be that these types of plans are NOT required to cover contraceptive services because they are not subject to federally-required EHBs in the first place.

Or so I thought.

Well not so fast, Sherlock.

Second part of Q10. How would employers sponsoring such plans determine which benefits are EHB when they offer coverage to employees residing in more than one State?

A - To determine which benefits are EHB for purposes of complying with PHS Act section 2711, the Departments of Labor, Treasury, and HHS will consider a self-insured group health plan, a large group market health plan, or a grandfathered group health plan to have used a permissible definition of EHB under section 1302(b) of the Affordable Care Act if the definition is one that is authorized by the Secretary of HHS (including any available benchmark option, supplemented as needed to ensure coverage of all ten statutory categories).

So the real test is: “if the definition is one that is authorized by the Secretary of HHS.“ Thus does Kathleen Sebelius keep her ultimate and final authority to personally approve or deny EHBs for any benefit plan- - even for those types of plans which the statute itself exempts. The government gave and the government has taken away; blessed be the name of the government.

This is further evidence that the Administration has no intention whatsoever to “compromise” with the sponsors of church and church-affiliated benefit plans. Expect no compromise even for church-affiliated plans that are self-insured, or in the large group market, or are grandfathered. Rather the Administration fully intends to force all plans to offer contraceptive coverage including those of church-affiliated sponsors who object on religious grounds, in apparent violation their First Amendment protections. Because Kathleen Sebelius says so – not because the statute says so.

My opinion: this issue is clearly about government overreach, not whether the particular social goal may be worthwhile. As citizens we should expect that our own government will always pursue its goals using legal and Constitutional means - rather than by double-dealing with us and by ignoring limitations placed on its powers in the Constitution and Bill of Rights. Maybe that's just me.