June 19, 2012
Marilyn Tavenner
Acting Administrator
Center for Medicare & Medicaid
Services
U.S. Dept. of Health and Human
Services, Room 445-G
200 Independence Avenue, SW
Washington, DC 20201
Attention: CMS-9968-ANPRM
Phyllis C. Borzi
Assistant Secretary
Employee Benefits Security
Administration
Room N-5653
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210,
Attention: RIN 1210–AB44
Steven T. Miller
Deputy Commissioner for Services
and Enforcement
Internal Revenue Service
U.S. Department of the Treasury
1111 Constitution Avenue, NW
Washington, DC 20224
Attention: RIN 1545-BJ60
Re: Advanced Notice of Proposed Rulemaking regarding Certain Preventive Services under the
Affordable Care Act
Dear Acting Administrator Tavenner, Asst. Secretary Borzi, and Deputy Commissioner Miller:
The National Partnership for Women & Families wants to again commend the Administration for the
extraordinary effort that has gone into implementing the Affordable Care Act (ACA) to date. We have
long advocated for reforms that ensure access to comprehensive, affordable health care for all women
and their families, with an emphasis on the needs of lower-income women. We strongly supported the
Department of Health and Human Services’ (HHS) announcement that it would adopt the Institute of
Medicine’s (IOM) recommendations to include eight categories of preventive services, including all FDAapproved contraceptive methods, under the Women’s Health Amendment to the ACA. The benefits of
family planning to women and to babies are well-documented, but, unfortunately, the cost of
contraception serves as a substantial deterrent to women obtaining the contraceptive services that they
need.
The National Partnership believes strongly that all women should have access to these important
preventive services. Every woman – regardless of her employer – should have easy access to
contraceptive services with no cost-sharing. We do not believe that any sort of religious exemption or
accommodation is required by law, and we continue to deem the best policy to be one that requires
universal coverage of contraceptive coverage just like any other preventive health service. Any
alternative continues to place some women in the position of receiving less than comprehensive health
coverage.
The National Partnership commends HHS’ efforts to provide nearly universal contraceptive coverage to
women and to work with various stakeholders to ensure that their needs are met, while ensuring
women’s access to comprehensive health care coverage. We look forward to continuing to work with
HHS to achieve that shared goal.
The Departments of Health and Human Services, Labor and the Treasury have requested feedback on
how to provide women with access to the preventive services that they all need while at the same time
1875 connecticut avenue, nw ~ suite 650 ~ washington, dc 20009 ~ phone: 202.986.2600 ~ fax: 202.986.2539
email: [email protected] ~ web: www.nationalpartnership.org
accommodating the religious objections of certain employers. Despite our firm belief that no
accommodation is required, our letter addresses some of the questions raised by the Departments and
also suggests how to make the accommodation work for everyone involved. We strongly urge the
Departments to make any additional religious accommodation work in a way that provides seamless
contraceptive coverage for all women who are impacted. Women’s access to contraceptive services
must not be made more difficult through the implementation of the accommodation. To that end,
religious employers should only be able to take advantage of the accommodation if, in doing so,
women’s access to contraception is unimpeded.
Which religious organizations should be eligible for the accommodation?
The Departments requested feedback on what entities should be eligible for the religious
accommodation.1 In order to meet the Departments’ desire to accommodate certain religious
employers, while at the same time providing nearly universal contraceptive coverage, the
accommodation should be tailored as narrowly as possible and should apply only to those employers for
whom religion is a central tenet of their institutions’ existence.
The current exemption allows churches and other houses of worship to opt out of providing
contraceptive coverage entirely. For the accommodation, we recommend adoption of a narrow
definition from existing law. Specifically, we recommend that the Departments define “religious
organization” for purposes of the accommodation as “a non-profit institution or organization owned or
controlled by a church, association of churches, or religious order.” This language is drawn from the
Hawaii state contraceptive equity law.2 The language is specific and limited in order to ensure that
allowing those organizations that meet the definition to avail themselves of the accommodation does
not undermine the goals of the underlying laws.
The “controlled by” definition would fulfill the Departments’ desire to provide an accommodation to
religiously affiliated entities that are not qualified to take advantage of the current exemption. At the
same time, it would not allow entities that are not closely affiliated with a church or other house of
worship to receive an accommodation. This definition has been implemented under current law and has
proven a workable solution for religious entities. The proposed definition reflects current law and
adequately accommodates religious beliefs, meeting the Departments’ stated goals “to maintain the
provision of contraceptive coverage without cost sharing to individuals who receive coverage through
non-exempt, non-profit religious organizations with religious objections to contraceptive coverage in the
simplest way possible…[and to] protect such religious organizations from having to contract, arrange, or
pay for contraceptive coverage”.3
For-profit entities will not be eligible for the accommodation under this definition. For-profit entities, by
definition, have profit, not religion, as the primary purpose of their existence. As a general rule, forprofit entities are not eligible to claim religious objections to generally applicable laws. Of the twentyeight state contraceptive coverage mandates, only one state (Missouri) allows for-profit entities to
qualify for an exemption.4 Eight states do not have any exemption for religious entities.5 As the
Departments themselves have recognized, for-profit entities are not eligible for special treatment as
religious institutions.6 This is in keeping with court decisions, which have held that for-profit businesses
are not religious and do not need to be provided with religious accommodations. The Supreme Court
has explained: “When followers of a particular sect enter into commercial activity as a matter of choice,
the limits they accept on their own conduct as a matter of conscience and faith are not to be
superimposed on the statutory schemes which are binding on others in that activity.”7 The Departments
pose the question “whether an exemption or accommodation should be made for certain religious
2
health insurance issuers or third-party administrators with respect to contraceptive coverage.”8 As with
all other for-profit entities, the accommodation should not be available to insurance issuers or thirdparty administrators.
There are several reasons for making the accommodation as narrow as possible. In addition to providing
uninterrupted contraceptive coverage to as many women as possible, a narrow accommodation will
make the implementation of the rule that much simpler. The narrower the exemption, the easier it will
be to implement for all involved. As noted in further detail below, some of the proposals suggested by
the Departments are more likely to be workable if fewer entities are covered by the accommodation.
Recommendation:
•
Only non-profit entities that are controlled by a church or religious order should be eligible for
the accommodation.
Should the current exemption be expanded?
The National Partnership also strongly opposes any expansion of the current exemption. As noted
previously, we do not believe that any exemption is necessary or appropriate. We are very concerned
that as few women as possible are impacted by any exemption. There is no reason to expand the
current exemption and to thereby impact the number of women who do not obtain comprehensive
health coverage. Furthermore, any expansion of the current exemption would violate the Women’s
Health Amendment to the ACA, which requires coverage of women’s preventive health services by all
non-grandfathered health plans. As recognized in the final rule, “A broader exemption, as urged by
some commenters, would lead to more employees having to pay out of pocket for contraceptive
services, thus making it less likely that they would use contraceptives, which would undermine the
benefits” of contraceptive coverage.9
Should the definition of religious organization include organizations that provide coverage for some,
but not all, FDA-approved contraceptives?
The Departments also seek comment on whether religious organizations should be allowed to qualify
for the accommodation with respect to some forms of contraception, while providing other forms of
contraceptives without cost-sharing.10 Presumably this refers to entities that refuse to cover items such
as emergency contraception, IUDs, or sterilization, but cover other methods of contraception. We
strongly urge the Departments not to permit such a bifurcation of contraceptive coverage without costsharing. Allowing entities to provide coverage of only some forms of contraception would undermine
women’s access to comprehensive health care coverage as required by the Women’s Health
Amendment. Moreover, allowing a split in coverage of contraception would needlessly create
administrative complexity. It would potentially require health insurance issuers and third-party
administrators (TPAs) working with multiple religious organizations to design numerous different plans
with various permutations of contraceptive coverage. It would also increase the potential for confusion
among participants and beneficiaries, which could lead to gaps in access to and use of the contraceptive
method most appropriate for a woman’s needs.
An approach that refuses to separate types of contraceptive coverage appropriately respects the nature
of the preventive services requirement, which considers contraception – including all FDA-approved
contraceptive methods and sterilization procedures – and related education and counseling as one
category of women’s preventive health services. Organizations arguing for the right to be exempt from
3
some specific methods (most often, emergency contraception and IUDs) frequently do so by claiming
incorrectly that some contraception methods are “abortifacients.” That claim is contrary to medical
science,11 to the IOM’s findings12 and to decades of precedence from the FDA and other U.S. agencies
and policies, as well as contrary to the assertions of HHS that the contraceptive coverage
recommendations “do not include abortifacient drugs.”13
In considering whether to apply for the accommodation, religious organizations should not be able to
pick and choose among contraceptive methods or be able to incorrectly redefine some contraceptive
methods as abortion. Rather, religious entities should provide coverage for all FDA-approved
contraceptives without cost-sharing or should relinquish that responsibility completely and take
advantage of the accommodation. This causes the least harm to women and furthers the Departments’
goal of providing contraceptive coverage to these individuals “in the simplest way possible.”14
Recommendation:
•
The Departments should specify that religious organizations should offer comprehensive
coverage that includes all FDA-approved contraceptive methods or decide that they cannot
offer that coverage and avail themselves of the accommodation.
How should participants and beneficiaries be notified that their insurance plan is subject to the
accommodation?
We appreciate the Departments’ recognition of the importance of providing plan participants and
beneficiaries notice about the contraceptive coverage without cost-sharing. 15 We agree with the
Departments that health insurance issuers and TPAs should provide such notice. To reach every
participant and beneficiary, we strongly urge the Departments to require health insurance issuers and
TPAs to use multiple methods of providing notice.
For example, the health insurance issuer or TPA can provide notice when it provides an insurance card
to the participants and beneficiaries. When an individual enrolls in a new health plan, the health
insurance issuer or TPA sends an insurance card directly to the participants and beneficiaries of the plan.
The Departments should require that the health insurance issuer or TPA include a clear, obvious notice
with this card indicating that the individual has contraceptive coverage without cost sharing. The notice
could take the form of a paragraph in the letter informing the individual of their coverage or a statement
accompanying the card. For existing participants and beneficiaries who already have an insurance card,
a separate notice containing the same information should be delivered to the participants and
beneficiaries. No matter the form of the notice, the statement should indicate how the participant or
beneficiary can access more information about the coverage, by contacting the issuer or TPA to request
more information or through information included on the issuer’s or TPA’s website.
Health insurance issuers and TPAs can also provide information on contraceptive coverage to
participants and beneficiaries through their website. Participants and beneficiaries often rely on a
health insurance issuer’s website for information on their coverage, such as current provider networks
and prescription formularies. Participants and beneficiaries must be directed to the webpage that
includes the information about contraceptive coverage in order for the notice to be considered
adequate.
Furthermore, we strongly urge the Departments to require that participants and beneficiaries receive
accurate information about their contraceptive coverage in any appropriate communications related to
benefits and coverage from the health insurance issuer, employer, plan sponsor, or third party
4
administrator. The Departments should guarantee that all applicable state and federal notice or
communication requirements accurately reflect the coverage to which an individual is entitled and do
not convey conflicting information.
In particular, under the ACA, all group health plans and health insurance issuers offering group or
individual health insurance coverage must comply with the requirement to provide a summary of
benefits and coverage (SBC) to all applicants, enrollees, and policyholders or certificate holders. 16 The
SBC is required by statute to “accurately describ[e] the benefits and coverage under the applicable plan
or coverage.”17 To that end, the Departments should ensure that the SBC does not state or imply that
an individual in a plan receiving an accommodation does not have contraceptive coverage. For example,
contraceptive coverage should not be included in the “Limitations & Exceptions” column of the chart
that begins on page two of the SBC. Similarly, contraceptive coverage should not be listed in the box
“Services Your Plan Does NOT Cover.” If it were included in these sections of the SBC, the SBC would
not comply with Section 2715, undermining the goal of helping consumers better understand their
coverage and compare coverage options, and rectifying the “current patchwork of non-uniform
consumer disclosure requirements.”18
Additionally, the Departments should make clear in this rulemaking or through future guidance that
contraceptive coverage without cost-sharing provided by health insurance issuers or TPAs in accordance
with the accommodation does not necessitate providing an additional SBC reflecting that coverage.19
While HHS has indicated that it will consider group health plans that use two or more issuers to meet
the SBC content requirements if they issue “multiple partial SBCs that, together, provide all the relevant
information,” such special circumstances only apply in the first year of applicability of the SBC rules,
ending in September 2013, and should not be extended for entities eligible for the accommodation
beginning on or after August 1, 2013.20
Requiring notice and communication to participants and beneficiaries in this way meets the dual goals
of ensuring that individuals in a plan receiving an accommodation have accurate and complete
information about their coverage while also allowing religious organizations to avoid discussion of
contraceptive coverage. Moreover, this notice and communication does not restrict a religious
organization’s freedom of speech regarding contraception. The religious organization is free to
communicate its views about contraception to employees or students through other, more appropriate
venues.
Recommendation:
•
Participants and beneficiaries subject to the accommodation should receive timely, accurate,
and clear information about their contraceptive coverage.
How should the Departments incorporate Public Health Service Act protections if contraceptive
coverage is added to the types of excepted benefits in the individual market?
The Departments note in the ANRPM that they are considering adding contraceptive coverage to the
types of excepted benefits in the individual market and seek comment on whether and how to structure
such a change and what Public Health Service (PHS) Act protections should apply.21 The National
Partnership understands “excepted benefits” in this context to refer to the separate contraceptive
coverage required under the accommodation. As such, some PHS requirements may not be applicable
to this separate coverage. We do not support any provision that would undermine women’s
contraceptive coverage or relieve any insurance plan of the obligation to provide this coverage.
5
Any provisions of the PHS Act that are designed to protect enrollee’s access to benefits that are covered
by a plan should apply to contraceptive coverage provided through the accommodation. For example:
•
The § 2711 requirement that there should be no annual or lifetime dollar value maximums on
essential health benefits should apply.22
•
Individuals should retain their § 2719 right to internal appeals and external review, including all
accompanying notice requirements, for contraceptive coverage.
•
Women seeking contraception services should be allowed direct access to any primary care
doctor in the network as required by § 2719A, including any ob-gyn, and without a referral.
•
The contraceptive coverage should be incorporated into the § 2715 Summary of Benefits and
Coverage by not listing contraceptive services as excluded by the plan, as explained above.
However the accommodation is structured, the benefits should automatically be included in COBRA
continuation coverage.23 If an individual is eligible for and enrolls in continuation coverage, then that
coverage must include the contraceptive coverage either as part of the plan or through the
accommodation. There should be no additional steps required, including no requirement to actively
choose to have contraceptive coverage included, and no additional premium. These recommendations
represent only a starting point. The Departments should be very careful to ensure that women do not
lose any relevant protections they would otherwise receive.
Recommendation:
•
If the Departments make the contraceptive coverage an excepted benefit, there should be
close attention paid to make sure women have full access to the contraceptive coverage
required under the law.
How should the accommodation be administered for self-insured entities?
The ANPRM raises the issue of how women covered by entities that self-insure can be guaranteed
access to no cost-sharing contraceptive coverage.24 The Departments suggest several options for how
this might work. We find some of these options promising and others problematic. We do not believe
that plans that will require private entities to foot the bill for contraceptive coverage so that non-profit
religious entities can reap the benefits of the cost savings to be gained from offering such coverage are
realistic or just. We also oppose proposals that would require beneficiaries to pay for this coverage
through tax-preferred accounts or otherwise use their own funds to purchase contraceptive coverage.
That would force women who work for religious entities to bear an additional cost, which is at odds with
the purpose of the Women’s Health Amendment and other preventive services provisions of the ACA, to
provide for no cost-sharing coverage of preventive services.
We believe that some of the proposals that finance the accommodation through funds raised under
different provisions of the ACA, such as the reinsurance provision, have more potential and encourage
the Departments to explore these options further. However, in doing so, we encourage the
Departments to address a number of outstanding questions. For instance, the reinsurance program is a
temporary tool, only scheduled to be in operation for plan years beginning on or after January 1, 2014,
through December 2016. In addition, we are concerned about the feasibility of using Exchange user fees
as a funding source, as the application of user fees (as well as other types of fees, charges, or payments
that states may require in order to provide financial support for Exchange operations) is likely to vary
6
across states. Moreover, it is impossible to assess the impact of either proposal on the reinsurance
program or Exchanges without knowing the amount of funding that would be diverted to financing the
accommodation. Both proposals are less likely to be successful if eligibility for the accommodation is
not strictly limited.
More importantly, we believe that the Departments should establish principles to ensure that women
who work for religious entities have adequate access to contraceptive coverage:
•
Whatever the method of accommodation, participants and beneficiaries must receive
contraceptive coverage without cost-sharing, additional premiums, or other charges.
•
Whatever the method of accommodation, contraceptive coverage must be provided
automatically and directly, without special enrollment or delay, and the privacy of participants
and beneficiaries who use the coverage must be protected.
•
Whatever the method of accommodation, enrollees must not lose out on critical protections,
like continuation coverage, appeals and external review, and right to see an OB/GYN without a
referral.
Moreover, any accommodation must be structured so as to provide seamless access to contraceptive
coverage. Unimpeded access is not just necessary to fulfill the goals of the preventive services provision,
but is also required by other provisions of the ACA and other federal laws prohibiting discrimination in
benefits. Section 1554 of the ACA, states that the “Secretary of Health and Human Services shall not
promulgate any regulation that … (1) creates any unreasonable barriers to the ability of individuals to
obtain appropriate medical care; (2) impedes timely access to health care services … or (6) limits the
availability of health care treatment for the full duration of a patient’s medical needs ”25 A separate
premium charge, enrollment period or delay in access to coverage, lack of accurate notice, loss of critical
protections, or any other impediment built into the structure of the accommodation would create an
unreasonable barrier and impede timely access to contraception. The accommodation must also comply
with section 1557 of the ACA, which prohibits discrimination in health care on the basis of – among
other things - sex.26 A failure to provide equal access to contraception disproportionately impacts
women and constitutes sex discrimination. If a religious employer’s plan does not fulfill these
requirements, than it should not be eligible for the accommodation.
Recommendation:
•
In determining how entities that self-insure will guarantee equal access to contraceptive
coverage the Departments should abide by the key principle of ease of availability without
additional cost to the beneficiary.
How will the accommodation interact with existing state contraceptive coverage mandates?
The Departments requested comment on how the rule will interact with current state law. As the
Departments recognized in the ANPRM, twenty-eight states have existing legal requirements mandating
coverage of contraception in health insurance plans.27 These state laws were enacted for the same
purpose as the additional women’s preventive health services required by Section 2713 of the PHS Act,
to remedy disparities in women’s access to critical health care. These laws have gone a long way toward
meeting women’s unique health care needs and ensuring health benefits for both women and infants.
Now, the federal contraceptive coverage requirement will help to fill in gaps in coverage and further
reduce disparities by providing women broad access to contraceptive coverage without cost-sharing.
7
Some of the state contraceptive coverage laws have religious employer exemptions that are broader
than the federal contraceptive coverage requirement’s exemption, allowing more employers to refuse
this critical coverage. We are pleased that the Departments appropriately recognize that broader
religious employer exemptions must be “narrowed to align with that in the final regulations.”28 Such a
result is required by the preemption provisions of the Affordable Care Act (ACA), which dictate that
state insurance laws that “prevent the application of a requirement” of the ACA are preempted.29
Allowing more employers to refuse contraceptive coverage would leave more individuals without
coverage of this critical service, force them to pay out-of-pocket, and put them at risk for unintended
pregnancies, with the concomitant risks of poor maternal and infant health outcomes. These state laws
prevent the application of the federal contraceptive coverage requirement and are therefore preempted
by it.
At the same time, a state law that does more to ensure women access to contraceptive coverage – for
example, by not exempting any religious employers – is not preempted by the contraceptive coverage
requirement. Because such a law is “more stringent” than the federal requirement and helps more
consumers, it does not prevent the application of the Affordable Care Act.30 The Departments
appropriately recognize that these state laws “will continue.”31 However, we are concerned that the
Departments appear to unnecessarily limit this to a “transition period,”32 which we take to mean the
temporary enforcement safe harbor period. The preemption principles of the ACA are not limited to
any particular time period. For this reason, we urge the Departments to clarify that the preemption
principles it recognizes – that those laws that protect more consumers will not be preempted while
those that are more stringent will be – will continue to apply beyond the transition period. This
understanding complies with the requirements under the ACA and other applicable laws.
Additionally, we urge the Departments to address the interaction of state contraceptive coverage laws
and the federal contraceptive coverage requirement with respect to grandfathered plans.
Grandfathered plans are not required to comply with Section 2713 of the PHS Act, including the
contraceptive coverage requirement. However, grandfathered plans are, for the most part, subject to
state contraceptive coverage laws. We urge the Departments to clarify that grandfathered plans must
continue to comply with the applicable state contraceptive coverage laws even though they are not
required to comply with the federal contraceptive coverage requirement.
Recommendation:
•
The Departments should make clear that state preemption principles will apply beyond the
temporary enforcement safe harbor period and that grandfathered plans must continue to
comply with applicable state contraceptive coverage requirements.
What other state and federal laws should the Departments consider in implementing the
accommodation?
In addition to state contraceptive coverage laws, existing law imposes additional requirements on
employers to cover contraceptives. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy
Discrimination Act (PDA) prohibits sex discrimination in employment.33 The PDA specifically prohibits
discrimination against women "affected by pregnancy, childbirth, or related medical conditions" in all
aspects of employment, including the receipt of fringe benefits.34 The Supreme Court has long held that
it is discrimination under this section to treat women differently, not just because they are pregnant,
but because of their potential to become pregnant.35 It is a violation of Title VII to allow some employers
to refuse to provide contraceptive coverage for their female employees. The specific issue of failing to
8
provide contraceptive coverage along with other related health services was addressed by the Equal
Employment Opportunity Commission in 2000. The EEOC panel noted that pregnancy discrimination
included discrimination based on the potential to become pregnant and found that the PDA clearly
prohibited discrimination in benefits, including prescription contraception.36 Similarly, Title IX of
Education Amendments of 1972 prohibits sex discrimination in education and prohibits university health
plans from failing to provide contraceptive coverage in otherwise comprehensive health plans.37 The
Departments should make clear that qualifying for the accommodation does not relieve religious
entities of their duty to cover contraceptives under Title VII and other civil rights laws.
Recommendation:
•
The Departments should clarify that taking advantage of the accommodation does not remove
religious entities’ obligation to comply with related state or federal anti-discrimination laws.
What are the cost savings for health plans, plan participants and beneficiaries, and the public of
providing contraceptive coverage?
The Departments also requested information about the financial implications of providing insurance
coverage of contraception.38 Contraceptive coverage provides significant cost savings for employers,
insurance plans, families and society. The cost of unintended pregnancy is substantial. No cost-sharing
contraceptive coverage makes birth control more accessible, so women who would not otherwise be
using contraception because of cost will now have access to it. It also allows women to use more
effective methods than they otherwise might. The cost-savings under the ACA can be expected to be
even greater because nearly everyone will have coverage, so insurers and employers will not lose their
investment when individuals change jobs or plans. The savings will be shared more widely across
society.
HHS summarized several of the relevant studies in the February 2012 Issue Brief published by the
Assistant Secretary for Planning and Evaluation (ASPE), “The Cost of Covering Contraceptives Through
Health Insurance.” One of the models summarized in the ASPE brief found that providing contraceptive
coverage “saves employers $97 per year per employee.”39 Another indicated that “after all effects are
taken into account, providing contraceptive services is ‘cost-saving.’”40
According to a 2011 report from the Institute of Medicine prepared by the Guttmacher Institute, private
insurance coverage of contraception is cost effective when taking into account the costs of unintended
pregnancies. Long-acting forms of birth control like the copper IUD and vasectomy are the most costeffective even though these methods have the largest upfront costs.41 According to the National
Campaign to Prevent Teen and Unplanned Pregnancy, contraceptive use saves as much $19 billion
annually in direct medical costs related to unplanned pregnancy.42
A 2000 study by the National Business Group on Health estimated that it costs employers 15-17 percent
more to not provide contraceptive coverage in employee health plans than to provide such coverage
when taking into account both the direct medical costs of pregnancy and indirect costs such as
employee absence and reduced productivity.43 Mercer conducted a similar analysis and also found that
contraceptive coverage would be cost-saving for employers. 44
The cost effectiveness of providing publicly funded contraceptive services is equally demonstrated. In
2008, family planning services at publicly funded clinics saved the federal and state governments an
estimated $5.1 billion.45 Publicly supported family planning clinics save taxpayers at least $3.7446 and as
much as $647 for every $1 that is spent providing contraceptive care. In 2006 nationwide unintended
9
pregnancies were estimated to cost federal and state governments $11.1 billion.48 Without the current
investment, the cost would be as much as $18 billion per year.49 Preventing unintended pregnancies by
providing contraceptive coverage results in substantial cost savings.
In addition to the questions presented by the Departments, we would like to comment on two
additional outstanding issues we urge the Departments to consider.
Addressing the potential precedential impact of the proposed accommodation
We appreciate the Departments recognition in the ANPRM that “this religious exemption is intended
solely for purposes of the contraceptive coverage requirement pursuant to section 2713 of the PHS Act
and the companion provisions of ERISA and the Code. Whether an employer is designated as ‘religious’
for these purposes is not intended as a judgment about the mission, sincerity, or commitment of the
employer, and the use of such designation is limited to defining the class that qualifies for this specific
exemption. The designation will not be applied with respect to any other provision of the PHS Act,
ERISA, or the Code, nor is it intended to set a precedent for any other purpose.”50
As the Departments consider the scope of an accommodation for religiously affiliated employers and
potential mechanisms for making that accommodation work for all interested parties, we encourage
them to continue to consider the precedential effect and reiterate this important point. Some
individuals and institutions in the United States have expressed religious or moral objections to other
services that are included under the Section 2713 requirements (e.g., vaccinations) or that will be
included under the Section 1302 essential health benefits requirements (e.g., blood transfusions and
mental health services). It should be anticipated that some such individuals and institutions will demand
exemptions or accommodations from those requirements as well.
In fact, several bills and amendments in Congress, such as H.R. 1179, the so-called Respect for Rights of
Conscience Act, propose sweeping exemptions to the requirements under both of these ACA provisions.
H.R. 1179, for example, would allow any health plan sponsor to decline to provide coverage of or pay for
any specific service or item required under the ACA if it claims that doing so is contrary to its religious
beliefs or moral convictions.
Recommendation:
•
The Departments should clearly reiterate that this accommodation has no precedential effect
on other coverage requirements now or in the future.
The impact of the ANPRM on the implementation of the preventive services requirements in regards
to what forms of contraception are eligible
As yet, the Departments have not issued guidance providing any details about what specific
contraceptive methods, services or information are included in the contraceptive coverage requirement
under Section 2713. Therefore, we were surprised and disappointed to see that the requirement
“excludes items and services such as vasectomies and condoms,”51 presumably on the grounds that
those items and services are for men, rather than for women.
The question of whether these items and services are excluded from the contraceptive coverage
requirement merits serious consideration and public comment. Other federal programs, most notably
Medicaid, have long allowed for the coverage and provision of male condoms for female beneficiaries,
by prescription. Moreover, vasectomies and male condoms—despite being used by men—offer their
10
health benefits to men’s female partners, and should be appropriately seen, therefore, as preventive
services for women. Indeed, vasectomy’s only health benefits accrue to women and their children.
Even if the Departments determine conclusively that vasectomies and/or male condoms cannot be
included under the Section 2713 requirement as women’s preventive care, the Departments should be
encouraging, not discouraging, insurance plans from covering those services without cost-sharing.
Indeed, it would be a mistake for an insurance plan to provide a financial incentive via cost-sharing to
couples to choose tubal ligation over vasectomy, given that vasectomy is less expensive, less invasive
and has less risk of complications. Moreover, other sections of federal law, such as Title VII of the Civil
Rights Act and Section 1557 of the ACA, could be interpreted as prohibiting health plans’ disparate
treatment of “male” contraceptive methods as sex discrimination.
Recommendation:
•
The Departments should reconsider the scope of required contraceptive services under the
Women’s Health Amendment to include condoms and vasectomies.
Conclusion
As noted above, the National Partnership strongly believes that all women deserve access to
contraceptive coverage without cost-sharing and do not believe that any exemption or accommodation
is necessary or beneficial. We strongly oppose any expansion of the exemption or an accommodation
that is not sufficiently narrowly tailored to reach only the religious entities that the Departments aim to
cover. Should the Departments move forward with an accommodation for religious entities not already
exempt from the contraceptive coverage mandate, we strongly urge the Departments to administer any
such accommodation in a way that will ensure women’s access to comprehensive health insurance that
include contraceptives without hurdles or impediments not faced by other individuals. All women
impacted by the accommodation must continue to have access to comprehensive insurance coverage
without added burden or cost. Religious entities should only be permitted to take advantage of any
accommodation to the extent that women’s health coverage is protected. Thank you in advance for your
consideration of our requests.
Sincerely,
Debra Ness
President
1
Certain Preventive Services Under the Affordable Care Act, Advanced Notice of Proposed Rulemaking (ANPRM),
77 Fed. Reg. 16501-16508, 16504 (March 21, 2012) [hereinafter ANPRM].
2
HAW. REV. STAT. § 431:10A-116.7(2)(4) (2010) (“For purposes of this definition, any educational, health care, or
other non-profit institution or organization owned or controlled by the employer is included in this exemption.”).
11
3
ANPRM at 16503.
4
Mo. Rev. Stat. 376.1199 (2001).
5
See, National Conference of State Legislatures, Insurance Coverage for Contraception Laws (Feb. 2012), available
at www.ncsl.org/issues-research/health/insurance-coverage-for-contraception-state-laws.aspx. The states are
Colorado, Georgia, Iowa, New Hampshire, Ohio, Vermont, Washington, and Wisconsin.
6
See, O’Brien v. HHS, Defendant’s Memorandum of Law in Support of Their Motion to Dismiss (May 2012).
7
United States v. Lee, 455 U.S. 252, 261 (1982). See also, EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610
(9th Cir. 1988) (holding that for-profit entity does not qualify for religious exemption under Title VII).
8
ANPRM, at 16507.
9
Group Health Plans and Health Issuers Relating to Coverage of Preventive Services Under the Patient Protection
and Affordable Care Act, Final Rule, 77 Fed. Reg. 8725-8730, 8728 (Feb. 15, 2012).
10
ANPRM, at 16505.
11
See, e.g., ACOG Committee on Practice Bulletins—Gynecology, Emergency Contraception, 115 OBSTETRICS &
GYNECOLOGY 1100, 1100-09 (2010); INT’L FED’N OF GYNECOLOGY AND OBSTETRICIANS & INT’L CONSORTIUM FOR EMERGENCY
CONTRACEPTION, EMERGENCY CONTRACEPTION STATEMENT (2012).
12
Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 91 (July 19, 2011) (“A wide array
of safe and highly effective FDA-approved methods of contraception is available, including barrier methods,
hormonal methods, emergency contraception, and implanted devices. . . .”) (citation omitted), available at
http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx.
13
U.S. Dep’t Health & Human Services, Affordable Care Act Rules on Expanding Access to Preventive Services for
Women, http://www.healthcare.gov/news/factsheets/2011/08/womensprevention08012011a.html, last updated
Feb. 15, 2012.
14
ANPRM, at 16503.
15
Id. at 16505.
16
42 U.S.C. § 300gg-15
17
42 U.S.C. § 300gg-15(a), added by ACA § 1001.
18
Summary of Benefits and Coverage and Uniform Glossary, Final Rule, 77 Fed. Reg. 8668-8706, 8668 (Feb. 14,
2012).
19
The final rule on the SBC was not drafted with the proposed accommodation in mind. As a result, a
misinterpretation of the final rule could result in participants and beneficiaries receiving two SBCs, one reflecting
coverage under the employer or university plan and one reflecting contraceptive coverage provided by the health
insurance issuer. Receiving two SBCs would clearly thwart the statutory and regulatory intent of the SBC to allow
consumers to understand their coverage and compare coverage options, and would perpetuate the problem of
non-uniform disclosure documents by necessitating two documents to convey the full scope of coverage rather
than one simple document.
20
U.S. Dep’t Health & Human Services, Affordable Care Act Implementation FAQs - Set 9,
http://cciio.cms.gov/resources/factsheets/aca_implementation_faqs9.html (last visited June 14, 2012).
21
ANPRM, at 16506.
22
The preventive services required by § 2713 are included as part of the essential health benefit package. U.S.
Dep’t Health & Human Services, Frequently Asked Questions on Essential Health Benefits Bulletin,
http://cciio.cms.gov/resources/files/Files2/02172012/ehb-faq-508.pdf (last visited June 4, 2012).
23
29 U.S.C. § 1161
12
24
ANPRM, at 16506.
25
Patient Protection and Affordable Care Act, Pub L. No. 111-148, § 1554, codified at 42 U.S.C. § 18114 (2010).
26
“Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on
the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et
seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is
receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program
or activity that is administered by an Executive Agency or any entity established under this title (or amendments).”
Patient Protection and Affordable Care Act, Pub L. No. 111-148, § 1557(a), codified at 42 U.S.C. § 18116 (2010).
27
ANPRM, at 16508.
28
Id.
29
See Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive
Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,739 (July 19, 2010).
(referring to “the preemption provisions of section 731 of ERISA and section 2724 of the PHS Act (implemented in
29 CFR 2590.731(a) and 45 CFR 146.143(a))).
30
“State insurance laws that are more stringent than the Federal requirements are unlikely to ‘prevent the
application of’ the Affordable Care Act, and be preempted.” Id.
31
ANPRM, at 16508.
32
Id.
33
42 U.S.C. § 2000e et seq.
34
42 U.S.C. § 2000e(k).
35
See Int'l Union, UAW v. Johnson Controls, 499 U.S. 187 (1991).
36
Equal Employment Opportunity Commission (EEOC), Decision on Coverage of Contraception (Dec. 14, 2000), at
http://www.eeoc.gov/policy/docs/decision-contraception.html (last visited June 11, 2012).
37
20 U.S.C. § 1681 et seq.
38
ANPRM, at 16508.
39
U.S. Dept. of Health and Human Services, Assistant Secretary for Planning and Evaluation, The Cost of Covering
Contraceptives Through Health Insurance, available at
http://aspe.hhs.gov/health/reports/2012/contraceptives/ib.shtml (last visited June 6, 2012).
40
Id.
41
Testimony by Guttmacher Institute Submitted to the Institute of Medicine’s Committee on Preventive Services
for Women (2011), available at http://www.guttmacher.org/pubs/CPSW-testimony.pdf
42
The National Campaign to Prevent Teen and Unplanned Pregnancy, Fast Facts: The Direct Medical Costs of
Unplanned Pregnancy and Cost Effectiveness of Preventing Unplanned Pregnancy (April 2009).
43
Bonoan R and Gonen JS, Promoting health pregnancies: counseling and contraception as the first step, Family
Health in Brief, Washington, DC: Washington Business Group on Health, 2000, No. 3
44
William M. Mercer, Women’s Health Care Issues: Contraception as a Covered Benefit, New York: William M.
Mercer, 2000.
45
Guttmacher Institute, Facts on Publicly Funded Contraceptive Services in the United States (May 2012), available
at http://www.guttmacher.org/pubs/fb_contraceptive_serv.html.
13
46
Id.
47
Adam Thomas, Policy Solutions for Preventing Unplanned Pregnancy, Center on Children and Families at
Brookings (March 2012), available at
http://www.brookings.edu/~/media/Files/rc/reports/2012/03_unplanned_pregnancy_thomas/03_unplanned_pre
gnancy_thomas.pdf.
48
Gold RB and Sonfield A; Publicly funded contraceptive care: a proven investment; Contraception (2011).
49
Id.
50
Id.
51
ANPRM, at 16502.
14