January 11, 2019 - Washington – On Wednesday, Senators Dianne Feinstein (D-Calif.), Patty Murray, (D-Wash.) and Congresswomen Barbara Lee (D-Calif.), Jan Schakowsky (D-Ill.), and Diana DeGette (D-Colo.) led a group of Democratic members of the House and Senate to send letters to Secretary Alex Azar at the Department of Health and Human Services (HHS) expressing grave concern about a proposed rule from the Trump administration that would create new burdens for women seeking insurance that covers comprehensive reproductive health care by requiring insurers to send two separate billing statements and instructing consumers to make two separate payments. The duplicative billing process would increase administrative complexity and could lead to people losing needed coverage, including coverage for all health care services. The Members made clear the proposed rule goes against Congressional intent and would jeopardize care for women across the country, and they urged the Administration to reverse course and rescind it.

(Left) Senator Dianne Feinstein (D-Calif.) 

“It is clear the proposed rule is intended to eliminate insurance coverage of abortion. It is the latest administrative action in a long line of attacks by the Trump-Pence Administration to undermine access to comprehensive sexual and reproductive health care, particularly abortion, and to sabotage the health care system. The regulatory process is meant to implement the laws that Congress passes, not to undermine them. This proposed rule likely would result in a loss of coverage, furthering the Administration’s goal of sabotaging access to health care, and in particular, women’s access to health care. We strongly oppose finalizing this rule and urge the Administration to reverse course and rescind the proposed rule,” wrote the senators.

“Women have the right to make their own decisions about their reproductive health. Barriers to abortion care force women to delay care, resulting in unintended pregnancies and unplanned births, which often times force families deeper into poverty. For these aforementioned reasons, along with the fact that abortion care is health care, we oppose this rule and urge you to withdraw it immediately before it has the opportunity to cause harm to Americans across the country,” wrote the members.

The Senate letter was also signed by Senators Richard Blumenthal (D-Conn.), Sherrod Brown (D-Ohio), Sheldon Whitehouse (D-R.I.), Tammy Baldwin (D-Wis.), Maggie Hassan (D-N.H.), Jeanne Shaheen (D-N.H.), Ed Markey (D-Mass.), Kirsten Gillibrand (D-N.Y.), Ben Cardin (D-Md.), Elizabeth Warren (D-Mass.), Chris Van Hollen (D-Md.), Bernie Sanders (I-Vt.), Maria Cantwell (D-Wash.), Patrick Leahy (D-Vt.), Catherine Cortez Masto (D-Nev.), Tina Smith (D-Minn.), Brian Schatz (D-Hawaii), Tammy Duckworth (D-Ill.), Tom Carper (D-Del.), Kamala Harris (D-Calif.), Bob Menendez (D-N.J.), Ron Wyden (D-Ore.), Amy Klobuchar (D-Minn.), Cory Booker (D-N.J.), Jeff Merkley (D-Ore.), Chris Coons (D-Del.), Mazie Hirono (D-Hawaii), Debbie Stabenow (D-Mich.), Chris Murphy (D-Conn.), Gary Peters (D-Mich.), Chuck Schumer (D-N.Y.), and Michael Bennet (D-Colo.).

The text of the Senate letter is below and the PDF of is available HERE.

The text of the House letter is further below and the PDF is available HERE.

Text of the Senate letter

January 8, 2019

VIA ELECTRONIC TRANSMISSION

The Honorable Alex Azar II
Secretary
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 716G
200 Independence Avenue SW
Washington, DC 20201

RE: RIN 0938-AT53 Patient Protection and Affordable Care Act; Exchange Program Integrity

Dear Secretary Azar,

We write with grave concern about the potential impacts of the regulation proposed on November 7, 2018, by the Department of Health and Human Services (HHS) regarding the health insurance marketplaces established under the Affordable Care Act (ACA) and urge the Trump-Pence Administration to withdraw the proposed rule. This proposed rule would substantially change the federal law around health insurance coverage of abortion and would undermine access to insurance coverage for abortion and other health care services, which would run afoul of the clear Congressional intent of section 1303 of the ACA. In addition, the proposed rule could confuse consumers, increase their health care costs, and ultimately lead to consumers losing not only abortion coverage, but health coverage in its entirety. HHS should rescind the proposed rule and instead focus on expanding health care and coverage options.  

Congress clearly intended to allow insurers to offer a plan that includes abortion coverage

Section 1303 of the ACA establishes “special rules” that allow insurers to decide whether to sell plans on the marketplaces that cover abortion, while imposing accounting requirements plans must follow in order to cover abortion beyond the limited exceptions included in the harmful Hyde Amendment.

This proposed rule contradicts Congressional intent, as its goal is to eliminate insurance coverage of abortion. While section 1303 imposes accounting requirements on plans that offer abortion coverage, the proposed rule goes far beyond Congressional intent by requiring insurers to send two separate billing statements or invoices for abortion services and other health services, and instructing consumers to make two separate payments.[1] These requirements would increase the cost and burden of selling plans in the marketplace that cover abortion outside of the limited instances of rape, incest, and life-endangerment. The onerous nature of these requirements could force many insurers to drop abortion coverage.

By effectively forcing insurers to drop abortion coverage from marketplace plans, the proposed rule runs counter to Congressional intent. During the drafting of the ACA, and section 1303 specifically, Congress clearly chose to allow insurers to continue to decide whether to cover abortion, thereby preserving the ability of women across the country to obtain insurance coverage of abortion. In fact, Congress explicitly rejected proposals that would have eliminated insurance coverage of abortion in the ACA marketplaces. For example, during the drafting of and debate over the ACA, the House of Representatives initially passed a bill that included a provision known as the “Stupak Amendment.” The “Stupak Amendment” would have denied the use of federal subsidies for any plan that included abortion coverage, effectively eliminating insurance coverage of abortion in the marketplace.[2] Ultimately, Congress rejected the Stupak Amendment and instead passed section 1303’s “special rules” on abortion coverage to ensure plans could be offered that include coverage of abortion. Further, following the passage of the ACA, Congress has similarly rejected several proposals that aimed to restrict abortion coverage in the marketplaces. This proposed rule undermines Congress’s explicit intent and could instead result in many insurers not covering abortion services due to the burdensome requirements imposed on them.

The separate payments requirement would increase costs and confusion for consumers and would potentially lead to many consumers losing their insurance coverage entirely.

The Trump-Pence Administration has frequently justified their sabotage of the health care system by citing a need to decrease health care costs for consumers and reduce regulatory burden. Yet, this proposed rule would clearly fail to achieve both those goals: it would increase costs to consumers and impose additional burdensome requirements on patients and insurers. In fact, the Trump-Pence Administration acknowledges the proposed rule will burden consumers, estimating it will cost consumers alone more than $30 million.  This $30 million estimate does not include the cost of consumers learning about the new billing and payment requirements, or the cost consumers will incur if they lose abortion coverage or coverage entirely. Additionally, the separate emails, mailings, and the necessary consumer education would likely cost insurers significantly more than the $1.6 million contemplated in the proposed rule– costs that would certainly be passed on to consumers.[3]  Further, the proposed rule does not acknowledge that the federal and state governments will need to devote additional personnel time and resources to ensure compliance with the proposed rule’s complex requirements.

The proposed rule’s requirements would also result in consumer confusion. Requiring one premium to be broken up into two separate bills goes against industry practice. Consumers may not understand why they are receiving a separate bill every month in addition to the rest of their insurance bill, particularly when the second bill may be as little as one dollar. As a result, some consumers may inadvertently fail to pay the second, smaller bill, while others may fail to properly pay either bill. A consumer who does not pay both bills in full could face loss of coverage entirely. The proposed rule does nothing to prevent this unnecessary loss of coverage from happening.

The proposed rule is clearly intended to make it harder for women to access abortion care and to prevent insurers from offering abortion coverage. 

There is no reason to overhaul implementation of Section 1303. It is clear the proposed rule is intended to eliminate insurance coverage of abortion. It is the latest administrative action in a long line of attacks by the Trump-Pence Administration to undermine access to comprehensive sexual and reproductive health care, particularly abortion, and to sabotage the health care system. The regulatory process is meant to implement the laws that Congress passes, not to undermine them. This proposed rule likely would result in a loss of coverage, furthering the Administration’s goal of sabotaging access to health care, and in particular, women’s access to health care. We strongly oppose finalizing this rule and urge the Administration to reverse course and rescind the proposed rule.

Sincerely,

cc: The Honorable Seema Verma
Administrator
U.S. Centers for Medicare & Medicaid Services
7500 Security Boulevard
Baltimore, MD 21244

Text of the House letter.

The Honorable Alex Azar
Department of Health and Human Services
200 Independence Avenue, S.W. 
Washington, D.C. 20201

Re: RIN 0938–AT53

Dear Secretary Azar:

We are writing to express our strong opposition to the proposed rule as it would impose unnecessary and onerous burdens on insurers and consumers with the goal of eliminating abortion coverage in the Affordable Care Act (ACA) marketplace and denying women comprehensive health insurance. This rule ignores Congressional intent on abortion coverage, would create consumer confusion, and would be costly for both insurers and consumers. By denying women comprehensive health coverage, it puts their health and lives in danger. For those reasons, we strongly urge the Administration to withdraw this proposed rule.

First, while Congress decided to treat abortion differently from other health care when it passed Section 1303 of the ACA, it did so specifically to ensure that private insurance plans could continue to decide whether to cover abortion in states that did not ban such coverage just as insurers had prior to passage of the law. In fact, Congress explicitly rejected amendments that would have imposed more stringent requirements or completely prohibited coverage in marketplaces altogether.

Second, the cost of abortion alone is often times prohibitive for many women. We are deeply concerned that the proposed rule would further push abortion out of reach for many and make access to the full spectrum of health care more difficult for women. Denying women access to the full range of health benefits, including abortion care, jeopardizes women’s health, their economic stability and their overall futures. When safe abortion is not accessible, it puts women’s lives in danger. If affordable abortion access is denied, women will return to the dark times of seeking unsafe, back-alley abortions.  In opposing this rule, it is also important to note that the U.S. abortion rate has reached its lowest level since 1973. This is due in large part to improved access to contraceptives under the Affordable Care Act. Increased access to contraception has led to lower unintended pregnancy rates, however, access to abortion care when contraception fails or is unavailable continues to be fundamentally central to women’s ability to plan and space their pregnancies in order to obtain career equality and economic well-being. Data shows that women who are unable to access reproductive health care, including contraception and abortion are more likely to live in poverty than women who were able to access this care. This rule will keep women from accessing safe, affordable abortion care when making their health care decisions for themselves and their families.

Third, this rule would turn a once simple and concise billing procedure into an arduous and costly process that would result in reduced access to health care for women. Since ACA implementation, insurers have satisfied the Section 1303 accounting requirements while also ensuring that abortion coverage remained in place. Moreover, in October 2017, the current Administration reinforced the long-standing implementation parameters of Section 1303 through guidance. Yet now, the Administration is proposing to overhaul those regulations and impose new burdensome requirements on insurers and consumers. The unnecessary requirements created by the proposed rule would force many insurers not to offer abortion coverage moving forward. In fact, that appears to be the goal of this rule—to eliminate abortion coverage in the ACA marketplaces and cause people across the country to lose comprehensive health coverage—a goal that runs directly contrary to congressional intent.

Fourth, this rule would also create consumer confusion. The rule’s requirements for two separate bills and two separate payments to cover a consumer’s premium would likely cause significant confusion for consumers as it requires a drastic change from how consumers currently receive medical bills and pay their premiums. For example, with this new billing structure, consumers may not realize or understand why they are receiving two separate bills for their health insurance. Having to pay two separate bills for one premium is incredibly confusing and many consumers may not understand that they must do this in order to cover their cost sharing requirements. With this confusion abounding, it may so happen that some consumers may not pay the second bill, perhaps simply forgetting to or not understanding that they must, thereby failing to pay their health insurance premium in full, putting them at risk of having their health care coverage cancelled altogether. The Administration acknowledges that the rule would affect at least 1.3 million consumers nationwide – putting those individuals and potentially many more at risk of losing critical health care coverage.

Fifth, it is important to note that this rule will be costly to implement. The Administration suggests that the rule could cost consumers $30.8 million, but the impact would likely be much greater. For example, the Administration did not include in this estimate the additional administrative costs involved in further separating billing practices, costs for both insurers and consumers incurred by the confusion resulting from this rule, and lastly, the cost of increased unintended pregnancies and births along the continuum. By not accounting for any of these, and other added costs of implementing this ill-conceived, the Administration is promoting a change that will increase both costs and administrative burdens - two things that this Administration claims to be vehemently against.

Women have the right to make their own decisions about their reproductive health. Barriers to abortion care force women to delay care, resulting in unintended pregnancies and unplanned births, which often times force families deeper into poverty. For these aforementioned reasons, along with the fact that abortion care is health care, we oppose this rule and urge you to withdraw it immediately before it has the opportunity to cause harm to Americans across the country. 

Sincerely,