Unprecedented Religious Liberties Threat from HHS

TIMING REVEALED: SECTION 1557 SUPER RULE TO BE FINALIZED THIS WINTER.

The General Counsel for Catholic Benefits Association, L. Martin Nussbaum, received information from the Department of Justice indicating that the Section 1557 Super Rule will be finalized by HHS this winter.

“As part of our diligence protecting Catholic Benefits Association members, we periodically monitor other lawsuits between the federal government and other parties that involve issues related to the abortion and gender-affirming care regulation that HHS proposed in August 2022. As part of that effort, Andrew Nussbaum, recently discovered a July 31, 2023 status report filed by HHS in Bagly v. U.S. Dept. of Health and Human Services, No. 20-cv-11297-PBS (D. Mass.) that provides guidance as to when HHS will make its proposed rule final.

In that report HHS stated that it was “moving as quickly as possible to consider the more than 85,000 comments submitted to the proposed rule”; that it “aspires to issue a final rule not later than this winter”; and that it “aspires to submit the [final] rule to the Office of Information and Regulator Affairs for final clearance before the end of the year.”

Given that OIRA’s review will take some time, we now anticipate that HHS will issue its final rule in the first quarter of 2024.

That rule, as you know, will likely mandate that employer health plans cover surgical and chemical abortion and a broad range of services the government calls “gender-affirming care.” It will also likely mandate that Catholic hospitals and other healthcare providers perform such services when they are competent to do so. The proposed rule included no meaningful religious exemption.”

The proposed HHS Section 1557 Super Rule published August 4, 2022 will force employers to include transgender surgeries, cross-sex hormones, “gender affirming care”, puberty blockers for children as young as 12 years old and much more in their health plans. It will require that all qualified health care providers, clinics, and hospitals provide such services and products. All insurance carriers will be mandated to include these services and products in plans. There are no exceptions for religious or conscience beliefs, or the types of insurance plans.

What it mandates:

Every aspect of transgender services and “gender affirming care”, including children as young as 12 years old.
Provision of these services in every employer’s health plan
Participation in the provision of these illicit services by healthcare providers and hospitals
Includes “pregnancy discrimination” and “pregnancy termination”, in the definition of “sex”, with no abortion neutrality provision

Punishable discrimination includes:

Failure to comply
Failure to provide “gender affirming care”
Pregnancy discrimination , including “termination of pregnancy”

What entities are included:

All employers with health plans
Health care providers, including hospitals and physicians
Organizations receiving Federal (HHS) funding, CMS funding or federal grants
Insurance companies and Third-Party Administrators

Who is enforcing:

Government agency (HHS, EEOC, etc.)
Individuals including employees, patients, health plan enrollees
Whistle-blower (Qui tam suits) by activists/others

What are the sanctions:

Loss of Medicare/Medicaid funds/False Claims Act remedies/treble damages
Compensatory damages, punitive damages, costs, attorney’s fees
Class Action suits

Detailed Information Regarding Proposed Mandate

Federal Government Transgender Policy Philosophy and Action

The Biden Administration is advancing new language, definitions, and support ahead of new proposed ruling. See and hear of those supported changes below:

READ: JUNE 15, 2022 - Executive Order Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals

READ: CEO Report - June 15 Executive Order

READ: Biden Administration Transgender Day Release

READ: Gender Affirming Care is Trauma Informed Care

READ: Office of Population - Gender Affirming Care

What CBA is Doing

The public comment period closed on October 3. In the coming weeks, Health and Human Services will published a final rule. The final rule will include dates that compliance will be enforced. Once this date is published, CBA will announce its plans to respond to the final rule. It is important that Catholic employer groups reach out to determine if they qualify for membership. Once CBA moves forward with legal action, it cannot be assumed that all non-member Catholic employers will be protected from the new mandates.

CBA made public comments on behalf of our membership. READ CBA’s COMMENTS HERE.

To determine if your organization can receive protection through the CBA, email Mandy Cox, Director of Communication and Member Services: mandycox@catholicbenefitsassociation.org.

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.

Contact CBA to learn more

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.

Join Catholic Benefits 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.

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