When is a final rule not a final rule? When it has been announced by Obama as the final rule in the contraception controversy. Apparently the "final rules" are anything but, which means there is plenty of time for some revisions and accomodations.
An Incomplete Contraceptive Coverage Compromise
Cary Coglianese | 02/13/12
In Friday's highly publicized announcement, President Obama may have helped contain the political firestorm over the new federal mandate that health plans cover contraceptives. But the embers are still hot. And legally speaking, nothing has changed. On Friday, the Department of Health and Human Services (HHS) issued a final rule that looks just like what it announced on January 20 – the very announcement that set off the recent firestorm.
What's going on?
Speaking to CNN just after the president’s announcement, HHS Secretary Kathleen Sebelius stated, “We’re pleased to announce that the final rule, which will be published later this afternoon, will include this important balance.” She reiterated that “as of the end of today the rule will be finalized.”
But the rule HHS finalized on Friday actually put in place nothing like what the president announced. On the contrary, the final rule enacts the very same terms that HHS had announced on January 20th. Churches are exempt from the mandate but the only concession religious nonprofits receive is the promised one-year “enforcement safe haven.” An accompanying guidance, also released Friday, would make the safe haven contingent on a nonprofit completing a certification and providing written notice to its employees that its health plan provides no coverage for contraceptives. In an explanatory preamble to Friday’s final rule, HHS did state that it plans to “work with stakeholders” on a separate rulemaking that would enact the compromise the President announced and even “to develop policies to achieve the same goals for self-insured group health plans.”
But it is clear that the federal government has not even begun to initiate this new rulemaking; it only “will work with stakeholders to propose and finalize this policy before the end of the temporary enforcement safe harbor.”
So at this point the rules don't exist, most importantly the rules for the self-insured; many Catholic institutions went the self-insurance route to escape state laws in, for example, New York and California. Whether that ploy will still work will depend, obviously, on what the new rules are. And those rules are subject to ongoing negotiation.
It ain't over 'til it's over. And maybe not even then.