Supreme Court: Religious Non-profit Need Not File EBSA Form 700 Regarding Contraceptives Accommodation | Practical Law

Supreme Court: Religious Non-profit Need Not File EBSA Form 700 Regarding Contraceptives Accommodation | Practical Law

The Supreme Court has issued an injunctive order providing that a non-profit religious organization taking advantage of the government's accommodations to the Affordable Care Act's (ACA's) contraceptives mandate need not use the government-prescribed form for doing so, and need not send copies of the form to its insurers or third-party administrators. The organization, a liberal arts college, must provide the government a general notice regarding its religious non-profit status.

Supreme Court: Religious Non-profit Need Not File EBSA Form 700 Regarding Contraceptives Accommodation

by Practical Law Employee Benefits & Executive Compensation
Published on 07 Jul 2014 • USA (National/Federal)
The Supreme Court has issued an injunctive order providing that a non-profit religious organization taking advantage of the government's accommodations to the Affordable Care Act's (ACA's) contraceptives mandate need not use the government-prescribed form for doing so, and need not send copies of the form to its insurers or third-party administrators. The organization, a liberal arts college, must provide the government a general notice regarding its religious non-profit status.
In another development impacting the Affordable Care Act's (ACA's) contraceptives mandate, the Supreme Court has issued an injunctive order that a non-profit organization (Wheaton College) need not:
  • File the government-prescribed form (EBSA Form 700) for claiming accommodations to the contraceptives mandate, as provided under Department of Health and Human Services (HHS) implementing regulations.
  • Send copies of Form 700 to the organization's health insurers or any third-party administrators (TPAs), as otherwise required under the regulations.
The interim order was issued in response to the college's request for emergency injunctive relief. The college argued that:
  • Filing Form 700 made it complicit in providing contraceptives, because doing so prompted another entity's obligation to provide the services to which the college objects.
  • The accommodation therefore impermissibly burdened the college's free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA).
Subject to final disposition on judicial review, HHS is barred from enforcing the contraceptives mandate and regulations against the college if the college informs HHS in writing (that is, other than on Form 700) that it is a non-profit organization that:
  • Holds itself out as religious.
  • Has religious objections to providing coverage for contraceptive services.
According to the Supreme Court's order, HHS may rely on the college's written notice for an accommodation to the contraceptives mandate, notwithstanding that the notice is not provided on the prescribed form.
Under the contraceptives mandate, which is part of the ACA's preventive services rules, non-grandfathered group health plans must provide contraceptive coverage without cost-sharing, effective for plan years beginning on or after August 1, 2012 (see Practice Notes, Coverage of Preventive Services under the ACA and Grandfathered Health Plans under the ACA). The implementing regulations include:
  • A categorical exemption for religious employers, which includes churches.
  • Accommodations that effectively exempt certain religious non-profit organizations that:
    • do not satisfy the exemption; and
    • among other things, self-certify on Form 700 that they qualify for an accommodation.
It was undisputed before the Supreme Court that the college was entitled to the accommodation for religious non-profits.
In last month's Hobby Lobby decision, the Court ruled that the contraceptives mandate, as applied to for-profit closely-held corporations with religious objections to the mandate, violated the RFRA and was therefore unlawful (see Legal Update, Supreme Court Strikes Contraceptives Mandate as Applied to For-Profits with Religious Beliefs). In doing so, however, the Court expressly declined to decide whether HHS' accommodations for religious non-profit organizations complied with the RFRA for purposes of all religious claims.

Dissenting Opinion

In a strongly-worded dissent, Justice Sotomayor (joined by Justices Ginsburg and Kagan) argued that the order reflects a retreat from the majority's opinion in Hobby Lobby, in which the Court relied on the availability of the religious non-profit accommodations in holding that the contraceptives mandate violated the RFRA as applied to closely-held, for-profit corporations.
The dissent also argued that the type of injunction provided, under the All Writs Act, was extreme in that it blocked operation of a law and regulations before the college's claims could be addressed on the merits.

Practical Impact

As noted by the dissenting opinion, the Court's order may present practical difficulties for the government in administering its contraceptives accommodations. For example, without a Form 700 filing (and the corresponding requirement that an eligible organization provide a copy of the certification to the plan's insurers and TPAs), it is unclear how HHS will identify the insurers and TPAs who are to be involved in offering contraceptives coverage under the accommodations.
Although the Court indicates that its order does not reflect its substantive views regarding the certification requirement, its order may raise further questions regarding whether the government's accommodations are adequate under the RFRA. Those questions will be the subject of additional litigation under the contraceptives mandate.