Mark raises three questions with respect to the regulation of *self-insured* plans. Short answers in a second. But first, it's important to stress two broader points:
First, Mark, like Judge Kavanaugh, suggests that the simple solution to this dispute is to merely require the objecting employers to notify the government of their objection--presumably without identifying their insurers or TPAs. The problem with this "solution" is that it's *not *a solution as far as the plaintiffs are concerned. Their theories of "complicity" are not based on the fact that they are required to identify the entities that are to provide coverage--indeed, most of them freely identify those companies in the complaints themselves. What the plaintiffs insist upon, instead, is either that their employees do not receive coverage at all or, at a minimum, that such coverage not be provided by the same company that otherwise insures or administers the employee plan. And the government obviously has good reason not to afford *that *sort of accommodation. (more on this in my post) Second, to the extent any plaintiffs are complaining about the alleged complicity compelled by the particular, unique mechanisms used for *self-insured* plans (the subject of Mark's inquiries), there's a very simple solution available to them: they can change over to insured plans. But they won't do so, or even argue that they'd like to do so, because in that case their employees will still be receiving coverage (or will be receiving coverage from a company with which the organization contracts for other services) and, again, their true objective apparently is to ensure that employees do not receive the coverage (or not receive it from one particular insurer). Now, on to the three questions about self-insured plans: 1. "Are petitioners right that in some cases they would have to locate and enter into a relationship with a TPA that is willing to provide the four objectionable drugs/devices?" *No.* If an employer wishes, it can self-administer a self-insured plan, in which case the government will not have any authority under current law to ensure coverage for its employees. (See point 5 of the section on "Substantial Burdens" in my post.) Notably, however, none of the plaintiffs have indicated that they'd actually like to invoke this option--therefore their "we have to enter into a relationship with a TPA" complaint is a bit of misdirection (in addition to being factually mistaken). 2. "Are they right that the certification is declared by law to be a formal addition to their insurance plan documents that authorizes the TPA to provide the drugs/services?" *No, not if the employer sends a notification to HHS. *In that case, it will be *DOL's notification* that serves as the operative legal document that compels (or requests) the TPA to provide coverage. I believe that the DOL notification will, technically, become an "instrument" of the preexisting plan; but I'm not sure it makes much sense to call it "their" (i.e., the employer's) plan. I'm not sure, but I don't think it's the property of the employer; and the employer will have nothing to do with the provision of contraception coverage. If this is correct, then in every respect *other than *as a matter of technical ERISA law, there will be two plans, not one. 3. "I realize Marty has said (if I understand him correctly) that employees of religious employers with "church plans" won't receive these drugs/devices in any event, but I think only one petitioner has a church plan. I still don't understand which organizations qualify to have church plans." Whether it's a church plan is simply a technical matter of ERISA law, entirely distinct from this regulation. There's no dispute, far as I know, about whether any plans are or are not church plans. I don't believe that I have said (or I should not have) that employees of religious employers with "church plans" *necessarily *won't receive reimbursement for the drugs/devices. They won't do so *if *the TPAs of the plan decline to offer such coverage voluntarily. In some cases, we don't know yet whether the TPAs will do so -- which is why the D.C. Circuit panel, for instance, analyzed the burden question for the church plans at issue in those cases. Hope that's helpful. On Sat, Aug 1, 2015 at 1:03 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > The linked PDF of the cert petition (in 15-119) doesn't include the > Appendix, which reproduces the self-certification form. Can anyone provide > an image (front and back, if double-sided) of the current form? > > Are petitioners right that in some cases they would have to locate and > enter into a relationship with a TPA that is willing to provide the four > objectionable drugs/devices? > > Are they right that the certification is declared by law to be a formal > addition to their insurance plan documents that authorizes the TPA to > provide the drugs/services? > > I realize Marty has said (if I understand him correctly) that employees of > religious employers with "church plans" won't receive these drugs/devices > in any event, but I think only one petitioner has a church plan. I still > don't understand which organizations qualify to have church plans. > > It seems to me that the sending of a letter or simple notice stating an > objection is all that is necessary for the government to make sure the > drugs/devices are provided, if the government (which acts purposively to > make law through two branches) so chooses. [I say "purposively" because we > know the courts have "neither FORCE nor WILL." (All caps in original, I > think.)] > > A requirement that such a letter or simple notice be sent is the least > restrictive means by which the government may advance that interest; it's > pretty clear to me that HHS can require that. If HHS is demanding more, > then it isn't clear why RFRA permits it to do so. > > Mark > > Mark S. Scarberry > Pepperdine University School of Law > > > Sent from my iPad > > On Aug 1, 2015, at 6:42 AM, "Marty Lederman" <lederman.ma...@gmail.com> > wrote: > > and a sixth petition, also from the Tenth Circuit decision: > > f. On July 24, 2015, four university plaintiffs in the Tenth Circuit case > filed another petition, No. 15-119 > <https://www.justsecurity.org/wp-content/uploads/2015/08/southernnazarene.pet_.pdf> > , *Southern Nazarene Univ. v. Burwell *(David Cortman, Counsel of Record). > Two of those plaintiffs, Oklahoma Wesleyan University and Oklahoma > Baptist University, use insured plans; all three judges on the court of > appeals rejected their RFRA claims The other two petitioners are among the > four plaintiffs as to which Judge Baldock dissented (see above)--Southern > Nazarene University, which uses a self-insured plan, and Mid-America > Christian University, which uses a self-insured church plan. All four of > these petitioners object to the regulation only as applied to the four > contraceptive methods at issue in *Hobby Lobby*--ella, Plan B, and two > types of IUDs. > > On Fri, Jul 24, 2015 at 3:14 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> A fifth petition filed, this one in *Little Sisters*: >> >> [UPDATE: >> >> e. On July 23, 2015, the parties in one of the consolidated cases in the >> Tenth Circuit--Little Sisters, et al.--filed petition No. 15-105 >> <https://www.justsecurity.org/wp-content/uploads/2015/07/littlesisters.pet_.pdf> >> , *Little Sisters of the Poor Home for the Aged v. Burwell *[Paul >> Clement, Counsel of Record]. As noted above, all three judges on the Tenth >> Circuit panel, including Judge Baldock, rejected Little Sisters' claim on >> the theory that there can be no substantial burden in that case because the >> Little Sisters employees will not receive cost-free contraception coverage >> in any event: Little Sisters uses a church plan administered by Christian >> Brothers Services, which has itself made clear that, because of its own >> religious objections, it will not provide contraceptive coverage if the >> Little Sisters were to opt out--and the government may not compel Christian >> Brothers to offer such services. >> >> Little Sisters nevertheless argues in its petition (see footnote 2) that >> its opt-out might still result in coverage for its employees, because its >> plan has *another* TPA, Express Scripts, that has not made the same >> representation as Christian Brothers; and at oral argument in the Tenth >> Circuit counsel for the government represented that the Department of Labor >> would ask Express Scripts to provide coverage to those employees even >> though the government has no legal authority to require Express Scripts to >> do so. The judges on the court of appeals not surprisingly disregarded >> Little Sisters' argument respecting Express Scripts; as I blogged back >> in January 2014 >> <http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html>, >> and as the government argued to the court of appeals, "Plaintiffs made no >> reference to Express Scripts in their complaint or in their preliminary >> injunction filings, and allegations about this organization cannot be a >> basis for challenging the court's denial of the preliminary injunction. . . >> . Moreover, plaintiffs bear the burden of establishing their entitlement >> to injunctive relief, which they have wholly failed to do with respect to >> any possible coverage by Express Scripts." That is to say, even assuming >> that Express Scripts is a third-party administrator, the mere possibility >> that it might voluntarily provide contraceptive coverage to Little Sisters' >> employees, absent any regulatory compulsion to do so, presumably would be >> insufficient grounds to reverse the preliminary injunction, given that >> Little Sisters bears the burden of establishing its entitlement to >> injunctive relief.] >> > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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