ACA FAQ Part 36 Addresses Religious Accommodation in Response to Zubik v. Burwell

The Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, The Departments) released Affordable Care Act (ACA) Implementation Frequently Asked Question (FAQ) Part 36 discussing accommodations for eligible organizations that object on religious grounds to providing coverage for contraceptive services.

On July 22, 2016, the Departments published a request for information (RFI) seeking input from interested parties to determine, as contemplated by the Supreme Court's opinion in Zubik, whether modifications to the existing accommodation procedure could resolve the objections asserted by the plaintiffs in the pending Religious Freedom Restoration Act (RFRA) cases, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.

The Departments found no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.

The comments showed that a process like the one described in the Court’s supplemental briefing order would not be acceptable to those with religious objections to the contraceptive-coverage requirement. The comments also showed that the administrative and operational challenges to a process like the one described in the Court’s order are more significant than the Departments had previously understood and would potentially undermine women’s access to full and equal coverage. For these reasons, the Departments are not modifying the accommodation regulations at this time.

The Departments believe that the existing accommodation regulations are consistent with RFRA for two reasons.

  • By virtue of objecting employers’ ability to avail themselves of the accommodation, the contraceptive-coverage requirement does not substantially burden their exercise of religion; and
  • The accommodation is the least restrictive means of furthering the government’s compelling interest in ensuring that women receive full and equal health coverage, including contraceptive coverage.