I don't know exactly how this works, but if you can't in some way be part of a negotiated rate group, medical costs would be very high. I'll get a $300 bill for lab work that Anthem cuts down to $20. We've all seen the stories about the outrageous "sticker" prices charged by hospitals to individuals who aren't insured (or otherwise covered by some sort of negotiated rate program). Could a negotiated rate network be set up without it being an insurance program that would be subject to ACA minimum standards? Then it might be possible for a decent-sized company to self insure.
But I don't know much about how this works. If the only way to provide coverage consistent with faith commitments is to self-insure without having access to such a program, that would seem to create a large burden. Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Aug 22, 2014, at 4:54 PM, "Marty Lederman" <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Two points in response: First, perhaps I should have been clearer: This is merely a responsive, or defensive, point on behalf of the government. In several cases, such as the Priests for Life case currently pending in the DC Circuit, it has been some of the plaintiffs who complain that the accommodation imposes a burden because it allegedly requires them to "refrain from canceling an insurance arrangement with a third party authorized to provide the mandated coverage." Similarly, at least one district judge ruled against the government in part on the ground that the regulations impose “a duty upon the religious organization to contract with a willing third-party administrator that will arrange for the payments for contraceptives.” The court stated that, in its view, “the obligation to take affirmative steps to identify and contract with a willing third-party administrator if the existing third-party administrator declines forces the religious organization to do something to accomplish an end that is inimical to its beliefs.” The government responded, quite reasonably, that the regulation does no such thing: If you want to go it alone, without a TPA, you can go right ahead. There is no duty to contract with a third-party administrator that will arrange for the payments for contraceptives. Second, the government has not adopted the view that going it alone would be "impracticable." It merely noted that no employers do so. And for good reason -- why would anyone choose that option, when employees are typically not as competent and trained as insurance company personnel at administering a plan? If it's marginally more efficient to hire a TPA, then presumably everyone would do so. But this does not mean that it would be so extraordinarily burdensome to handle it in-house -- after all, employees often administer payroll and other unwieldy programs for organizations. I can imagine that it's marginally more expensive or less efficient to do it in-house, which is why no one does so. But if an employer truly cared about its alleged religious duties, and this was an easy way to avoid so-called "complicity," one would think that bearing a modest cost such as bringing the insurance administration in-house would not be such a prohibitive burden to bear. Indeed, if an employer were more willing to violate its religious precepts than to train some employees to administer an insurance plan, that might well tell us something about the importance to the employer of those religious tenets. On Fri, Aug 22, 2014 at 6:50 PM, Kniffin, Eric N. <eknif...@lrrlaw.com<mailto:eknif...@lrrlaw.com>> wrote: Marty, The government does not believe that your third option is practicable. See 78 Fed Reg 39880: “Although some commenters addressed the solicitation for comments on whether and how to provide an accommodation for self-insured group health plans established or maintained by eligible organizations that do not use the services of a third party administrator, no comments indicated that such plans actually exist. Accordingly, the Departments continue to believe that there are no self-insured group health plans in this circumstance.” This is an option so unattractive, so expensive, so burdensome that nobody is doing it. Eric Eric N. Kniffin, Attorney Admitted in Illinois & District of Columbia, Not Admitted in ColoradoLewis Roca Rothgerber LLP | 90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662(T) 719.386.3017<tel:719.386.3017> | (F) 719.386.3070eknif...@lrrlaw.com<mailto:719.386.3070eknif...@lrrlaw.com> | www.LRRLaw.comFrom:<http://www.LRRLaw.comFrom:> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, August 22, 2014 4:32 PM To: Law & Religion issues for Law Academics Subject: Re: "Administration to ‘Augment’ ACA Contraceptive Rules" You've got those basically correct, Doug: In order to prevail, an employer with a self-insured plan would have to demonstrate a substantial burden on religious exercise as to each of the following, all of which are legally available options: 1. Declining to provide a plan 2. Using an insured plan 3. "self-insuring" without a TPA (this is mostly in response to several briefs that argued -- incorrectly -- that the government requires the organization to contract with a TPA, something the government has expressly rejected) 4. invoking the accommodation 5. offering contraception coverage in its plan On Fri, Aug 22, 2014 at 6:07 PM, Douglas Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: Marty, could you elaborate on your point 6? Not using an insurer or a third-party administrator presumably means not only self insuring, but processing all the claims yourself. Is that right? That would be expensive, difficult, and as a practical matter, probably impossible for most employers. I suppose that with sufficient determination, large employers could set up an internal claims-processing unit and hire folks from insurance companies to staff it. And then the option of not providing insurance at all. Is this your longstanding position that employers can drop their insurance plans, pay the fines, an give their employees a pay increase to cover the cost of insurance on the exchanges? Or is it something different? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:434-243-8546> ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. 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