The White House proposed a new compromise Friday regarding religious nonprofits and the mandated contraceptive coverage, a deal that would potentially allow Notre Dame to issue a health insurance plan to its employees without directly providing birth control coverage.
The proposal suggested a separate, individual private insurance policy that could provide contraceptive coverage at no cost for the employees of faith-based organizations.
"These proposed rules aim to provide women with contraceptive coverage without cost sharing and to protect eligible organizations from having to contract, arrange, pay or refer for contraceptive coverage to which they object on religious grounds," the proposal stated.
The proposal is an amendment to rules regarding minimum insurance packages set forth by the Department of Health and Human Services as part of its regulatory authority under the Affordable Care Act (ACA).
If the proposal takes effect, objecting organizations could provide employees with a plan that does not offer contraceptive coverage. The health insurer providing the plan would then enroll those employees in a separate, stand-alone policy that only covers contraceptives at no extra cost.
The University, however, is self-insured. The policy proposed by the White House on Friday presented several possible approaches for self-insured organizations. In all approaches, self-insured plans could work with the company that administers their health benefits to avoid coverage contraceptives.
A third-party administrator would "automatically arrange separate individual health insurance policies for contraceptive coverage from an issuer providing such policies," the proposal stated.
A previous proposal had suggested a similar solution for self-insured plans, but under that proposal, the third-party administrator would have had no way to pay for the contraceptive coverage other than the revenue it receives from self-insured plans. That proposal was criticized by many as nothing more than an accounting gimmick.
The current proposal would lower fees in other parts of the ACA to provide third-party administrators with savings they could use to pay for the contraceptive coverage.
The third-party administrator would receive a credit in an amount that would offset a reasonable charge by the third party administrator for performing this service.
University Spokesman Dennis Brown declined comment on the proposal until Notre Dame administrators have fully analyzed its contents.
Last May, the University filed one of more than 40 religious liberty lawsuits from faith-based organizations to contest the constitutionality of the contraception mandate. The lawsuit states the mandate would go against Church teachings and therefore violates the First Amendment, the Religious Freedom Restoration Act and other federal laws.
A federal judge dismissed Notre Dame's lawsuit last month, when U.S. District Court Judge Robert Miller Jr. ruled Jan. 2 that the lawsuit should be dismissed because the University's claim is not yet "ripe," meaning it is not ready to be litigated - in this case, because the rule regarding contraceptive coverage had not been finalized.