By Rachel N. Morrison, Fellow, HHS Accountability Project, Ethics and Public Policy Center and Maggie Beecher, Senior Counsel, Napa Legal
What to Know
Faith-based nonprofits will likely be required by forthcoming U.S. Department of Health and Human Services (HHS) rules to provide insurance coverage for procedures and treatments that contradict many faith-based nonprofits’ religious beliefs. Specifically, HHS plans to finalize two rules that would pose serious religious liberty concerns.
The first is a proposed rule that would mandate insurance coverage for “gender transition” surgeries and treatments, including for minors. The rule classifies as a new “essential health benefit” for individual and small group plans (fewer than 51 employees) a range of transgender treatments, including: puberty blockers for children, cross-sex hormones, genital and non-genital surgical procedures (hysterectomy, penectomy, mastectomy), and a host of cosmetic facial and body modifications. Under certain circumstances, fully insured large group plans (above 50 employees) will also be required to provide coverage of those treatments. The proposed rule included a cursory note that HHS will comply with laws respecting conscience and religious freedom, but it is unclear whether or how HHS would recognize exemptions for faith-based organizations.
The second is an anticipated proposed rule under Section 1557 of Obamacare, which prohibits sex discrimination in HHS-funded health programs and activities. It is predicted that HHS will redefine “sex discrimination” to include “termination of pregnancy” as well as “sexual orientation” and “gender identity.” This would likely mean that insurance plans would be required to provide coverage of abortion and gender transition treatments, and employers would thus be required to provide and pay for such plans. It is unknown whether the proposed rule would recognize any religious exemptions. HHS anticipates publishing the proposed rule in April 2022.
For many faith-based nonprofits these rules, if and when finalized, will create a conflict with their religious convictions.
What to Do
May 16, 2022 | Compared to the more common fiduciary duties of care and loyalty, the duty of obedience to mission is often forgotten. Unlike directors in the for-profit sector who seek to maximize profit for shareholders, non-profit directors must consider their organizational purposes and mission statements when making decisions.
May 11, 2022 | The Parable of the Talents is often referenced when the topic of investing arises. The story aims to teach us that talents (our money, resources, tools, or gifts) are to be placed out in the world and put into action where they can benefit others, grow, and then come back multiplied. The principle applies to faith-based nonprofits, as well as individuals and for-profit businesses. When a faith-based organization finds itself with extra cash, the organization should consider whether investing these extra funds prudently would be in the organization’s best interest.
April 14, 2022 | One side-effect of COVID-19 has been the acceleration of remote working. Whether provided as an accommodation to a disability, or in response to a demand from (among others) Millennial employees, many companies and organizations will need to adapt to this new working environment. This adaptation includes providing for remote working in a way that is done fairly and avoids litigation.