Right in the middle of the winter holidays, the U.S. Department of Health and Human Services (HHS) released a final rule entitled “Patient Protection and Affordable Care Act; Exchange Program Integrity.” Despite its innocuous title, this rule intends to restrict abortion coverage. Although HHS acknowledges that most commenters objected to the proposed rule and asked for its complete withdrawal, the final rule is nearly identical to what was proposed. Nothing changes from what the National Health Law Program argued in its comments to the proposed rule: the obstacles placed by the rule will severely curtail access to health care, including reproductive and sexual health.
What is the rule about?
Under the Affordable Care Act (ACA), qualified health plans in the marketplaces (plans) must segregate funds in two separate accounts: one account for payment for all services for which federal funding is available – including abortions for pregnancies due to rape or incest, or when the pregnant person’s life is in danger (also called Hyde abortions) – and a second account for payment for all other abortion services. The ACA regulations allowed insurers to send an itemized bill that separated the costs of abortion coverage from the costs of all other coverage, collect the payments, and then it was the responsibilty of the plans to separate the funds into their respective allocation accounts.
This final rule requires plans to send a second, separate bill to enrollees for the portion of the premium attributable to coverage of most abortions – i.e. those that go beyond the circumstances of life endangerment, rape, or incest – and to instruct enrollees to separately pay for that portion of their premium.
Under the proposed rule, the statements and payments were to be sent in two different envelopes. The only minimal difference between the proposed and final rule is that plans may now send the two separate billing statements in the same envelope or mailing. However, plans still need to print and issue different statements, and enrollees must still pay using two separate checks. If the statements are sent electronically, the plan must still send two emails and the enrollee must pay the premiums in two separate transactions.
Under the final rule, plans will still assume more burdens, such as issuing and processing payments from multiple instruments for each enrollee, adjusting for systems changes, paying for additional printing, notifying and educating enrollees, and modifying appeals processes. Ultimately, these costs will be passed on to enrollees in the form of higher premiums, which the Administration admits.
On Intent – To Be or Not to Be
In the final rule, HHS confirms its belief that the collection of two separate payments align with the intent of the Affordable Care Act. However, HHS does not cite any legislative or statutory history to substantiate such argument. No language in the ACA or subsequent regulations holds that enrollees themselves must make two separate payments. On the contrary, the ACA regulations unequivocally establish that plans are charged with making the premium separation in accordance with generally accepted accounting requirements and current industry practice, as plans have demonstrated to have done. The intent of the ACA was to give states flexibility in administering their exchanges. This rule dramatically changes that course.
More Money, More Problems
HHS acknowledges that the rule will be difficult to implement and that plans will experience an increased administrative burden as a result. It estimates that implementing this rule will cost approximately $546.1 million in 2020, $232.1 million in 2021, $230.7 million in 2022, and $229.3 million 2023 and onwards. To meet these costs, HHS suggests that plans use the premiums allocated for abortions to cover administrative costs associated with complying with the final rule. Notably, the ACA establishes that these separate funds can only be used to pay for abortions. As such, the rule defies ACA requirements.
HHS also admits that premiums for all marketplace enrollees will increase. By HHS’ own account, premiums will increase by at least one percent in plan year 2021 and each year thereafter. HHS recognizes that plans in states that do not require abortion coverage will likely drop abortion coverage, and to make that easier, the rule allows these plans to drop abortion coverage mid-plan year. Clearly, the Administration intends to decimate abortion access and is facilitating the elimination of its coverage.
To Terminate or Not To Terminate, and To Opt Out
HHS acknowledges that failure to pay the premium for abortion coverage could result in enrollees losing all of their health coverage. The rule states that HHS will not punish plans if they “establish policies to ensure that consumers do not lose their coverage due to failure to pay the separate the bill.” Further, the rule says, plans cannot refuse a combined payment on the basis that the enrollee did not send two separate payments. Plans must accept the payment and disaggregate the amounts into separate accounts, consistent with the 45 CFR § 156.280. As long as enrollees pay the abortion premium – whether or not it is on a single, combined payment – their coverage cannot be terminated.
At the same time, HHS reaffirms that plans will be subject to state and federal rules regarding grace periods, meaning that enrollees’ failure to pay for the premium attributable to abortion could eventually result in termination of coverage altogether. As such, enrollees could lose their coverage if they do not pay the additional premium and do not specifically indicate that they would like to opt out of this specific coverage (more on opting out below). Those who do not understand the new rule or simply forget to pay the abortion premium are still subject to eventually lose their health care.
In the meantime, HHS states it may, at some future time, need to address the risk of terminations related to inadvertent failure to pay the separately bill amounts for coverage of abortion services. Until then, issuers, consumers, and providers will remain in the dark, and will most likely endure hardships amidst the confusion.
The final rule adds a provision not in the proposed rule, allowing enrollees to opt out of abortion coverage for religious or moral objections by not paying the abortion premium. HHS encourages plans to include in their billing statements an option (such as a check box or option button) allowing enrollees to indicate their intent to opt out of coverage by not paying the separate bill. However, any changes to abortion coverage can only happen once. In other words, enrollees cannot change their minds if they once decided to opt out of coverage.
HHS also expects plans to discern whether enrollees’ failure to pay the abortion premium is mere forgetfulness or lack of awareness, or motivated by personal beliefs.
Plans will have the untenable task of distinguishing between enrollees who inadvertently fail to pay the abortion premium versus those enrollees who intended not to pay the abortion premium. HHS simply leaves this nuanced and difficult set of tasks to plans that cover millions of enrollees and their dependents.
The Elephant in the Room – States that Mandate Abortion Coverage
According to HHS, the rule does not preempt state law regarding coverage of abortion services, like abortion coverage mandates, or coerce states into changing these laws. Nevertheless, HHS raises the question whether these mandates are consistent with statutory conditions on federal funding from HHS.
The new rule will likely undermine legal protections in these states and will disproportionately increase overhead costs for their plans and premiums for their enrollees. It diminishes states’ efforts to ensure abortion coverage is available to those who need it.
This final rule is initially effective on February 25, 2020 and the requirement for separate billing and payment becomes effective on June 27, 2020 or the next billing cycle after this date. However, HHS may allow plans or exchanges that face “uncommon or unexpected impediments but show good faith efforts” additional time to implement these requirements, but not beyond the beginning of 2021.
What HHS missed – Impact on the people
The administrative burdens imposed by this rule will lead plans to drop abortion coverage, even if enrollees desire such coverage. At the same time, enrollees may see premiums rise. In addition, the rule adds more complexity to accessing health care by causing confusion and anxiety for all consumers buying plans in the marketplaces as they try to understand the billing changes. Consumers will be perplexed when receiving two separate bills from the same plan, and by having to make two separate payments. It is quite likely that enrollees will not have the resources or time to follow up with their plans to understand that they need to make a second payment of an amount as small as $1. They will either lose abortion coverage, which they may need or want in the future, or eventually lose all health coverage after the grace period ends.
HHS ignored arguments that the availability of electronic billing systems will not lessen consumer confusion. It dismissed the many communities in this country that are without consistent access to the internet. People of color, older adults, rural residents, and those with lower levels of education and income are less likely to have broadband service at home. Because of the disparity in accessing the internet, for some consumers, electronic billing is not a viable option.
HHS also failed to account for the additional confusion and anxiety that will be caused for individuals who already face barriers in navigating health insurance, particularly individuals with low literacy and educational levels, those living with visual disabilities and/or impairments, and Limited English Proficient (LEP) speakers. HHS failed to offer requirements or guidelines for how issuers should educate, inform, and conduct outreach to these consumers regarding these changes in billing and payment.
This rule threatens to undermine access to quality health care, including essential reproductive health services. Abortion is legal and it is a constitutionally protected form of medical care in the United States. Yet this new hurdle on insurance coverage, coupled with increasing federal and state attacks on access to abortion care, renders the constitutional right meaningless. Already, too many are denied abortion coverage because of how much they earn, where they live, or how they are insured. For many, coverage for abortion care means the difference between getting the health care they need when they need it and being denied that care. This new rule imposes onerous and unnecessary burdens on consumers that will result in the loss of insurance coverage and reduced access to comprehensive health care, including abortion.
NHeLP denounces this rule as a cynical tactic to erode abortion coverage. The goal of the ACA was to expand health care coverage, and abortion is a basic health service that should be covered. With this new rule, millions of people could lose coverage and have less access to comprehensive health care, including reproductive and sexual health services.