2024 Super Rule for Section 1557
Final Rule
Enforced July 5, 2024
Health And Human Services and Equal Employment Opportunity Commission
Key Points
Who Must Comply
- Healthcare providers, insurers, third-party administrators (TPA), and pharmacy benefits managers (PBM).
- TPA would be liable if it complies with the plan sponsor’s requests exclusions of coverage required by the 2024 Rule.
- Health care institutions including hospitals, clinics, pharmacies, nursing homes, physicians practice groups, and others.
How Employers Are Bound:
- Employers will be left without moral options to provide employee health benefits.
- Failure to cover required benefits will be referred to the Equal Employment Opportunity Commission for investigation of discrimination under the definition of “sex”
What Is Required:
Covered entities must cover
- Artificial Fertility treatments
- “Gender affirming care”
Healthcare providers must perform:
- Fertility treatments
- “Gender affirming care”
- Chemical and surgical abortion, under “sex discrimination” to include “termination of pregnancy”.
Enforcement Action By:
- Health and Human Services will refer violations to EEOC
- Equal Employment Opportunity Commission under Title VII
- Actions with no RFRA Defense:
- Private Action by employee
- Possible Class Action Suits
- All exemptions applications would be available under FOIA requests
Potential Penalties:
- Compensatory and punitive damages
- Attorney fees and costs
- Adverse publicity and boycotts
Religious Exemptions:
- Categorical religious exemption is denied.
- HHS does not apply RFRA to the 2024 Rule.
- Only available on a case-by-case basis through consultation with HHS.
- Must overcome government’s compelling interest and third-party harm.
- If granted, only applies to HHS.
CBA Action:
CBA filed an amended complaint to its ongoing litigation in the 8th Circuit on May 30, 2024.
The 2024 Super Rule Implementing Section 1557 Of The Affordable Care Act:
HHS finalized the new 2024 Super Rule for Section 1557 on May 6, 2024. This rule states that “a covered entity shall not operate any health program or activity that excludes participation in, denies benefits of, or otherwise discriminates against any individual on account of his or her sex”.
What Is Required:
Covered entities receiving federal financial assistance or deliver a health program or activity include healthcare providers, insurers, third-party administrators, and pharmacy benefits managers. TPAs, insurers, PBMs and health care providers must cover chemical and surgical abortion, artificial fertility treatments, and “gender-affirming care” in the health plans they administer.
Health care providers must perform artificial fertility treatments, gender-affirming care and, likely, abortion.
Hospitals cannot stop physicians from performing abortions or gender-affirming care or refuse to hire or contract based on participation with immoral services (associational discriminations). Staff must be trained on these required non-discrimination principles, with no regard for the Ethical and Religious Directives.
While the Super Rule does not endorse a specific standard of care, it did refer to certain groups in the proposed rule. Based on this, it can be assumed that the following is required under “gender affirming care”
- Puberty blockers for children as young as 11
- Cross0sex hormones
- Genital mutilating surgeries (top and bottom)
- Feminizing and masculinizing cosmetic surgeries
- Psychotherapy
- Ban on so-called conversion therapy
- Testicular tucking
- Breast binding/pads
- Penile prosthesis
- Voice modification and coaching
- Reproductive health care for impotent and sterile persons
- Social Support
Employer Mandates
Employers are NOT directly bound, however all avenues to provide employee health benefits are bound by the rule. While the employer is not required to provide these benefits, the entities that provide and administer the plan ARE required to provide these services in the plans they administer.
All employers who fail to include these services within their plans will be referred to the EEOC for its Title VII enforcement.
Conscience And Religious Protections
The only exemptions offered for providing abortions are given to providers, with no mention of the other covered entities.
There are no categorical religious exemptions.
If an employer desires a religious exemption, they must consult with HHS to affirm this exemption. The request would have to overcome the possibility of third-party harm.
If it is determined that there is adequate proof of religious exemption, it would only bind HHS during its investigation and enforcement.
If HHS does not find adequate proof of religious exemption, the discrimination would be referred to EEOC for enforcement.
All consultation requests for religious exemptions will be discoverable under the Freedom of Information Act.
What You Can Do
CBA Protections
The existing CBA protections apply to current and newly joining member organizations. Now is the time for Catholic employers to strengthen your legal protections.
While the final rule will include new mandates, CBA’s permanent injunctions provide protection from much of the proposed rule. Any new mandates will be fought vigorously to protect our members.
Protect your organization
The public comment period has ended.
It is important to join CBA before the final rule is published, in order to secure protections.
Joining members automatically receive protections already secured by CBA. Any future protections apply to all members of the Association.
Donate
Now that we know the full scope of the proposed rule and the continued commitment of the federal government to advance an agenda against religious liberty, now is the time to support CBA.
The weight of a long litigation process is more easily borne by many shoulders. Each victory for religious freedom is a victory for all.
You can support us in this fight by donating today.