Do New Health Law Mandates Threaten Conscience Rights and Access to Care: NHeLP

The National Health Law Program (?NHeLP?) submits this testimony to the Energy and Commerce Committee?s Subcommittee on Health. NHeLP is a public interest law firm working to advance access to quality health care and protect the legal rights of low-income and underserved people. NHeLP provides technical support to direct legal services programs, community-based organizations, the private bar, providers, and individuals who work to preserve a health care safety net for the millions of uninsured or underinsured low-income people. In a just society, every woman must be able to make her own decisions about whether or when to have children based on her own beliefs and needs. The Patient Protection and Affordable Care Act (?the ACA?) recognizes that preventive health services are critical to individual and community health, and that cost is often a barrier to accessing the preventive services we need. Moreover, it acknowledges the critical role that a woman?s health plays in her family and her community by explicitly requiring that women?s preventive health services be covered without cost-sharing.
NHeLP?s testimony addresses issues raised by the Majority staff?s Internal Hearing Memorandum dated October 28, 2011, and circulated to Members of the Subcommittee on Health. NHeLP strongly supports the decision by the U.S. Department of Health and Human Services Secretary, Kathleen Sebelius, to adopt the recommendations from the Institute of Medicine (?IOM?) to require insurance coverage of women?s preventive health services, including contraception, without cost-sharing. NHeLP strongly opposes efforts to undermine the health and autonomy of women, and the Majority staff?s Memorandum presents two such threats: (1) HRSA?s proposed exemption from the contraceptive requirement for certain religious employers; and (2) H.R. 1179, an expansive bill that undermines health reform by permitting insurers to opt-out of providing insurance coverage.
These efforts disregard accepted ?standards of care,? practices that are medically necessary and services that any practitioner under the circumstances should be expected to render. Every person who enters a doctor?s office or hospital expects that the care he or she gets will be based on the best medical evidence and will meet accepted medical guidelines ? in other words, that care will comport with medical standards of care. Refusal clauses and denials of care violate these standards. They undermine standards of care by allowing or requiring health care professionals and institutions to abrogate their responsibility to deliver services and information that would otherwise be required by generally accepted practice guidelines. Ultimately, refusal clauses and institutional denials of care conflict with professionally developed and accepted medical standards of care and have adverse health consequences for patients.
The ACA requires group health plans and health insurance issuers to cover certain preventive services without cost-sharing.1 Among other things, the ACA requires new group health plans and health insurance issuers to cover such additional women?s health preventive care and screenings as provided for in guidelines supported by the Health Resources and Services Administration (?HRSA?).2 By doing so, the ACA recognizes that women have unique reproductive and gender specific health needs, disproportionately lower incomes, and disproportionately higher out-of-pocket health care expenses. HRSA commissioned the independent IOM to conduct a scientific review and provide recommendations on specific preventive measures that meet women?s unique health needs and help keep women healthy. The IOM developed eight recommendations based on scientific evidence, including the input of independent physicians, nurses, scientists, and other experts. HRSA recently adopted eight recommendations submitted by the Institute of Medicine (?IOM?), which include the recommendation that women receive coverage for all FDA-approved methods of contraception free of cost-sharing.3 Requiring coverage of all eight preventive services recommended by the IOM, including coverage of all-FDA approved methods of contraception, is good medical and economic policy. 
HRSA charged the IOM with convening a committee to determine the preventive services necessary to ensure women?s health and well-being.4 To this end, the IOM convened a committee of 16 eminent researchers and practitioners to serve on the Committee on Preventive Services for Women.5 The Committee met five times in six months.6 The Committee reviewed existing guidelines, gathered and reviewed evidence and literature, and considered public comments.7 With respect to women, the IOM identified gaps in the coverage for preventive services not already addressed by the ACA, including services recommended by the United States Preventive Services Task Force, the Bright Futures recommendations for adolescents from the American Academy of Pediatrics, and vaccinations specified by the Centers for Disease Control and Prevention?s Advisory Committee on Immunization Practices. The IOM recommended that, among other things, women receive coverage for all United States Food and Drug Administration (?FDA?)-approved methods of contraception free of cost-sharing because: (1) pregnancy affects a broad population; (2) pregnancy prevention has a large potential impact on health and well-being; and (3) the quality and strength of the evidence is supportive of the recommendation to provide contraceptive coverage free of cost-sharing.8

Family planning is an essential preventative service for the health of women and families. In 2008, there were 66 million United States women of reproductive age (ages 13-44).9 Over half of these women?36 million?were in need of contraceptive services and supplies because they were sexually active with a male, capable of becoming pregnant, and neither pregnant nor seeking to become pregnant.10 Each year, nearly half of the pregnancies in the United States are unintended?meaning they were either unwanted or mistimed. 11 Forty-two percent of unintended pregnancies end in abortion.12 By age 45, more than half of all women in the United States will have experienced an unintended pregnancy, and four in ten will have had an abortion.13 Increased access to, and use of, contraceptive information and services could reduce the rate of these unwanted pregnancies. 
The IOM report recognized that not all contraceptive methods are right for every woman, and access to the full range of pregnancy prevention options allows a woman to choose the most effective method for her lifestyle and health status. Current methods for preventing pregnancy include hormonal contraceptives (such as pills, patches, rings, injectables, implants, and emergency contraception), barrier methods (such as male and female condoms, cervical caps, contraceptive sponges, and diaphragms), intrauterine contraception, and male and female sterilization. As the IOM reported, female sterilization, intrauterine contraception, and contraceptive implants have failure rates of less than one percent.14 Injectable and oral contraceptives have failure rates of seven and nine percent, largely due to misuse.15 Failure rates for barrier methods are higher.16 A woman has an 85 percent chance of an unintended pregnancy if she uses no method of contraception.17 Approximately 50 percent of unintended pregnancies in the United States occur among the eleven percent of women using no contraceptive method.18 According to the Guttmacher Institute, in the United States, publicly funded family planning services and supplies alone help women avoid approximately 1.5 million unintended pregnancies each year.19 If these services were not provided in 2008, unintended pregnancy rates would have been 47 percent higher, and the abortion rate would have been 50 percent higher.20

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