In The News
By Genevieve Plaster
The non-partisan congressional watchdog agency, Government Accountability Office (GAO), released a new report late September 15 confirming that: 1,036 federally subsidized plans cover elective abortion; insurance consumers were frequently not informed of this coverage before enrolling; and plan issuers are not billing elective abortion coverage separately despite a legal requirement.
The report also makes public for the first time a complete list identifying every plan by name that covers elective abortion and those that do not in the states that permit coverage on the insurance exchanges. (This list may be accessed here by clicking “Abortion Services Interactive Map” on the right: http://www.gao.gov/products/GAO-14-742R.)
This valuable resource has been a long time coming. Former Department of Health and Human Services (HHS) Secretary Kathleen Sebelius promised and dodged requests for this very list three times under oath (here, here, and here) during Congressional hearings over the past 11 months. Her successor, Sylvia Burwell, apparently did little to follow up. The GAO, which reports working on this project for seven months, did what the giant of HHS could or would not do despite its $941 billion budget, which makes it wealthier than Indonesia, the 16th richest nation in the world.
The GAO report found:
- 28 states allow elective abortion in Qualified Health Plans (QHP) offered on health insurance exchanges.
- 15 states have no restrictions or limitations on the elective abortion coverage.
- Five states offer only elective abortion plans on the exchange. There are no “pro-life” plans in Connecticut, Hawaii, New Jersey, Rhode Island, and Vermont. (Note: The Lozier Institute also found this to be the case when researching the first four states; however, Vermont proved particularly difficult as one insurance company provided conflicting responses via four different representatives and did not make available any abortion policy document upon request.)
- 1,036 QHPs cover elective abortion.
- 87 percent of the 5.4 million Americans who bought insurance via the exchanges used federal premium subsidies to pay for their coverage.
- 11 of the 18 plan issuers interviewed as a sample did not provide abortion information to consumers before they enrolled.
- None of the 18 plan issuers interviewed billed the abortion surcharge separately per the law or itemized the fee clearly as abortion.
- One plan issuer was not aware at all of the requirement to file an abortion segregation plan with its state department detailing its abortion accounting methods.
This, after almost one full year of individuals and families enrolling in and paying for their health insurance.
The present situation above – and Lozier’s latest
findings – on the lack of segregation of abortion funds directly violates that provision in the Affordable Care Act. Even the author of this billing arrangement provision, Sen. Ben Nelson, explained
clearly in 2009:
"If you are receiving Federal assistance to buy insurance, and if that plan has any abortion coverage, the insurance company must bill you separately… Now, let me say that again. You have to write two checks: one for the basic policy and one for the additional coverage for abortion."
HHS has responded to the report by acknowledging that “additional clarification may be needed.” It promised that its Centers for Medicare & Medicaid Services (CMS) would “address issues of concern” and “speak directly with the QHPs or state Departments regarding the issues identified by GAO to determine whether additional guidance is necessary” for states and issuers to understand the laws. Regardless of any proposed technical or logistical “fixes,” however, the heart of the matter is the troubling issue that this “medical procedure” that intentionally takes a human life – unlike any other medical procedure – is being sold as “healthcare.”
Genevieve Plaster is a research assistant at the Charlotte Lozier Institute.
By Genevieve Plaster
Now, four and a half years since the Affordable Care Act’s passage and nearing the end of its first year of implementation, concerns over elective abortion coverage in health insurance exchange plans continue to be dismissed by the current administration. In addition to the evident lack of transparency over which plans cover this “benefit,” the Charlotte Lozier Institute (CLI) has now also found that the ACA provision that is supposed to separate funds used for elective abortions from other taxpayer payments in federally subsidized health insurance exchange plans is largely inoperative.
According to Section 1303 of the ACA, issuers of insurance plans that cover elective abortion on the health insurance exchanges are required to “collect from each enrollee in the plan (without regard to the enrollee’s age, sex, or family status) a separate payment for [elective abortion services],” which must be deposited “into a separate account that consists solely of such payments and that is used exclusively to pay for [elective abortions].” (emphasis added)
Two major questions emerge: Exactly how do plan issuers “collect” and keep separate this abortion surcharge? And, second, do they inform prospective and current plan members that a portion of their monthly payment goes directly to an abortion-on-demand fund?
This August, CLI asked this exactly of about 20 insurance companies that have elective abortion plans on the exchanges and that provide an e-mail address for inquiries. E-mail was chosen as the main means of inquiry, as CLI has over its year-long search for answers experienced many phone conversations to be just as unproductive, though more time-consuming as many frontline representatives were also left stranded with inaccurate (or no) abortion coverage information to share. CLI also mailed letters to the same 20 companies plus another 20 who provide elective abortion coverage on the exchange, requesting copies of their accounting plans as required to be filed with the state health insurance commissioner (See: 45 C.F.R. § 156.280[e][ii]). As of this article’s publication, three weeks since the mailing, no replies have yet been received.
The Lozier Institute found overall that most representatives do not know about a separate abortion premium charge that involves all members, and they generally responded instead with information on coinsurance, copay, deductible, and/or a separate rider to be determined on a case-by-case basis according to the specific plan and the woman’s situation. The few below that did address the segregation of funds question offered a troubling glimpse into how the provision is simply not being followed, and therefore hasn’t been observed for the entire year:
- A Member Services agent of Connecticare in Connecticut informed CLI on August 14: “Normally the separate account only has to be set up if your employer has a religious exemption on their policy.”
- A Client Services representative of HealthyCT, also in Connecticut, on August 20 replied that the company “puts $1.00 of each member’s premium into an abortion segregation fund.” In a surprisingly straightforward communication, the agent continued, “Per the law, HealthyCT does not allocate any federal money into our abortion segregation fund. All elective abortions are paid for out of this fund.” Regarding how HealthyCT informs members, however, the agent provided the following quotation here from the 2015 Certificate of Coverage that is currently pending approval:
"The Plan will also cover elective abortions. The Affordable Care Act specifically prohibits use of federal funds to pay for elective abortion services. As per federal law, $1.00 of your premium per month will be moved to a segregated abortion fund in order for HealthyCT to pay for any elective abortion procedures. If you do not pay $1.00 or more per month in premium, you may be billed separately for this amount.” (emphasis added)
Importantly, the current 2014 Certificate of Coverage does not contain this billing language.
- A Member Services representative from Health Republic Insurance of New Jersey (HRINJ) on August 14 said she didn’t know what CLI meant about the separate abortion payment, but instead replied, “This does not apply to New Jersey. All plans in New Jersey offer that benefit included in the monthly premium.” In a previous e-mail responding to CLI’s inquiry about whether HRINJ covered voluntary abortion, the same agent likewise explained that “termination of a pregnancy is a mandated coverage by the state of New Jersey’s Department of Banking and Insurance. All plans in New Jersey must offer this service.” According to CLI’s research, indeed all plans currently cover elective abortion in the state exchange. The New Jersey Administrative Code that includes all regulations up through June 2014 did not appear to include such a mandate, however.
- A Member Services agent from Maine Community Health Options (MCHO) over several e-mails in early September wrote that the separate payment “is a Federal Requirement and is taken in to consideration in premiums and included [sic] it is nothing you would pay extra for if that makes sense.” When CLI asked for clarification that the company itself later separates the payment from the member’s total premium, the agent reiterated: “It’s all handled per Federal and state guidelines and would not be the member’s responsibility to deal with any sort of separation, etc.” Though CLI asked whether MCHO informs its plan members that a part of their premium is placed in a separate elective abortion fund, MCHO did not directly address this in any response.
- A licensed agent from AmeriHealth of New Jersey (AHNJ) via live chat replied after a wait of 20 minutes: “How the funds are dispersed (sic) is handled by the pre-certification department” that she explained must receive prior approval from the member’s doctor. After clarifying CLI’s interest in the separate payment required by law to be collected from all members, this agent transferred us to a second licensed agent to respond, though she also continued along the route of prior approval, stating, “Once a decision is made, you will be notified. I am unable to answer your question as far as how AHNJ collects separate payments.”
When asked which department one might contact, CLI learned that “there isn't a department that you can contact. This situation has to go through the proper channels. Once we decide if the procedure is going to be covered or not I can assure you that you are going to get all the necessary information you need.” As a side note, the chat screening page requires selection of a category of question into which an inquiry would fall, including “healthcare law,” which CLI selected.
- A representative from the Premium Billing Department of Western Health Advantage (WHA) in California replied, “To notify our enrollees of the elective abortion benefit we include the following statement on our invoices. ‘Please include an additional separate payment of $1 per family member every month as required by federal regulations. For more information, please visit mywha.org/$1fee.’ This money is then deposited into a separate account.”
When CLI asked whether WHA provided plan members with the $1 fee website address or otherwise notified members prior to enrollment or the first month’s bill, the company explained in puzzling fashion: “We do not bill for the separate amount because we are not obligated to bill as a mandatory fee. Most of our members send an extra check for the fee, or include it in their payment. WHA identifies those extra fees in a payment or sent individually, and it goes into an account that is separately mailed to the Feds.” One wonders if “required by federal regulations” is not effectively the same as “mandatory,” and the idea of those funds being mailed to the federal government, rather than retained and managed by the insurance company, is obscure.
These highlighted responses illustrate a whole host of problems. Most importantly, it is clear from the above that taxpayers are subsidizing elective abortions and many likely without even knowing – serious threats both to the liberty of those who would object and to the integrity of this administration’s promise of an elevated level of transparency. As it stands, no fewer than 25 states have recognized this threat and passed their own laws banning elective abortion plans
from their state exchanges. Of the nine states that both lack such a law and do not yet participate in the Multi-State Plan Program (MSPP) that guarantees at least one “pro-life” non-elective abortion covering plan in each state, CLI found that four
of these do not have any
pro-life options for its residents. These are: Connecticut, Hawaii, New Jersey, and Rhode Island.
Further, it is not clear that this administration has made a serious effort to enforce its own segregation of funds accounting provision. It is clear that plan issuers are not billing it separately in actuality, and yet they have submitted to the state health insurance commissioner the required paperwork explaining in detail the accounting process in which they plan to keep funds segregated. Whether the accounting plans were approved without scrutiny and follow-up or whether companies are not following their own accounting standards for this benefit is unclear.
Another real problem highlighted above is the federal mandate to keep the abortion surcharge effectively hidden from consumers. The Rules Relating to Notice
clause of Section 1303 of the ACA states that “any advertising used by the issuer with respect to the plan, any information provided by the Exchange, and any other information specified by the Secretary shall provide information only with respect to the total amount of the combined payments for [elective abortion services] and other services covered by the plan
” (emphasis added). The WHA invoice as seen above, though not an advertising document, exemplifies the secretive spirit of the clause by not itemizing the abortion fee and veiling it in talk of “federal regulations.” Even PolitiFact admitted
of the abortion surcharge: “It turns out to be a hidden fee.”
) over the past 10 months from the Department of Health and Human Services for more transparency on insurance plans with elective abortion coverage has come to naught. More than four years later, Americans are also realizing that Nancy Pelosi’s infamous statement, “But we have to pass the bill so that you can find out what is in it
,” was truly prophetic. The root of the problems, however, will not be solved simply with more transparency and better accounting as this does not sufficiently address the real conscience concerns of a majority of Americans
who oppose taxpayer subsidies for abortion, the current state of affairs across dozens of states and hundreds of plans.
Genevieve Plaster is a research assistant at the Charlotte Lozier Institute.
*Featured image is Rep. Katrina Jackson (LA-16), author of Act 620, The Unsafe Abortion Protection Act.
By Genevieve Plaster
A federal judge on August 31 issued a “limited” temporary restraining order on a Louisiana abortion health and safety law that would have gone into effect September 1. The Unsafe Abortion Protection Act (HB 388), or Act 620, requires doctors at abortion facilities to have admitting privileges at a hospital within 30 miles in case a need for emergency care arises.
This August, three abortion facilities and two abortion doctors, troubled by the prospect of their respective facility’s closure, filed a suit challenging the law’s constitutionality. Hope Medical Group for Women in Shreveport, Bossier City Medical Suite in Bossier City, Causeway Medical Clinic in Metairie, and two unnamed doctors filing under “JOHN DOE” 1 and 2 claimed that they were not provided enough time to secure admitting privileges at local hospitals.
Louisiana law says that hospitals may take more than 90 days to issue decisions on admitting privileges. Though Governor Jindal planned to sign HB 388 within 90 days of its passage, he was not able to do so due to a scheduling conflict. The bill’s sponsor, Rep. Katrina Jackson, a Democrat, however, argued that “everyone had proper notice,” referring to the bill’s overwhelming support in May with a 34-3 vote in favor in the State Senate and an 88-5 vote in the State House of Representatives.
The ruling by Judge John deGravelles of Baton Rouge ensures that the law will still take effect, but that the plaintiffs will not be penalized while their applications for admitting privileges are pending, and that their facilities may remain open. Last week, Olivia Watkins, State Department of Health and Hospitals (DHH) spokeswoman, informed the Associated Press that the agency will not close facilities on the condition that the abortion provider can demonstrate that he has already applied for admitting privileges. DeGravelles’ ruling specifies that should facilities or doctors be denied admitting privileges, they will no longer be permitted to remain open. He called for a status conference in a month to check on the plaintiffs’ applications. Currently, only one of the five abortion facilities in the state has a physician with admitting privileges.
It is worth noting that the plaintiffs refused a compromise that the state offered prior to the ruling. Kyle Duncan, attorney to the state DHH, submitted a signed declaration from the secretary of DHH on August 28 stating that it would not penalize abortion providers whose admitting privileges applications were pending a decision from a hospital. The plaintiffs rejected this accommodation, instead requesting a full restraining order to block the law, and this, DeGravelles in turn rejected.
Rep. Jackson attested that she is “pleased” with the ruling as it only temporarily exempts facilities that have pending approval of admitting privileges. She emphasized that the bill’s compassionate goal to protect women should be a uniting factor, saying: “Abortion is often called a ‘minor surgery,’ but the truth is that women frequently suffer from both physical and psychological effects from abortion. We want to make sure women receive the absolute best care, and protecting women through common-sense legislation is something we all should stand behind.”
Louisiana Right to Life’s Executive Director Benjamin Clapper likewise responded: “HB 388 was overwhelmingly approved by the Louisiana Legislature as a measure to promote the continuity of care and protect the health and safety of Louisiana women. Prompt implementation of HB 388 will allow Louisiana to raise the standard of care in Louisiana abortion facilities sooner rather than later. While any delay of the law is a setback to that goal, we believe Judge deGravelles' limited decision was a fair one.”
DeGravelles’ decision comes in the wake of differing rulings on similar laws in the Fifth Circuit Court of Appeals, which presides over federal district courts in Louisiana, Texas, and Mississippi. On August 29, Federal Judge Lee Yeakel struck down a provision of the historic House Bill 2, which would require abortion facilities to meet the same health and safety standards required of ambulatory surgical centers (ASC). The same law’s admitting privileges provision was previously upheld in a unanimous decision by a Fifth Circuit panel composed of three women judges who ruled that the requirements did not place “undue burdens” on women seeking abortion. The Center for Reproductive Rights in turn filed a lawsuit on behalf of abortion providers challenging both the admitting privileges and ASC requirements, eventually allowing for Judge Yeakel, who presided over the trial, to rule on their side. Attorney General Greg Abbott immediately filed an emergency motion requesting that the law be enforced; however, the Fifth Circuit declined it, and decided to hold a hearing on September 12 in New Orleans.
In Mississippi, a different Fifth Circuit three-judge panel invalidated an admitting privileges law in a split decision. A major difference that affected the Mississippi ruling is that the admitting privileges law would have resulted in the closure of the state’s only abortion facility; whereas, many but not all in Texas might have been shuttered.
Thirteen states have passed similar laws requiring admitting privileges of the abortion provider, including states that provide for a similar “alternative agreement,” such as an abortionist working out an agreement with another physician who has admitting privileges. Including admitting privileges required of the facility itself, this bumps the total to a substantial 21 states, not to mention the six additional states in which the law has been temporarily enjoined and is pending court decision.
As this recent move towards requiring admitting privileges continues in states, abortion advocates have recognized its effectiveness in closing centers and taken a defensive tone, stating that the requirement is an unnecessary burden. A brief of state abortion policies by the Guttmacher Institute counts state legislation that restricts abortion with the commentary that each one listed is “beyond what is necessary to ensure patients’ safety.” Among these are requirements for: admitting privileges, health and safety standards equivalent to those for surgical centers, and specifications of the procedure room size and corridor width to permit access to emergency personnel.
Louisiana’s Unsafe Abortion Protection Act is a comprehensive bill. Besides requiring admitting privileges, it also requires doctors who perform more than five abortions per year to maintain proper licensing. Moreover, the bill clarifies that informed consent protections such as the 24-hour waiting period also apply to medical abortions. That informed consent protections be extended to chemical abortions is significant, as a recent study shows that such provisions reduce the abortion rate. Additionally, Act 620 requires that the abortion doctor report to the FDA any adverse effect the woman experiences during or after administration of the drug to induce abortion within three days of learning of the adverse event’s occurrence. More consistent abortion reporting that requires collection of complications data would benefit the current state of affairs as public health officials and the medical community assess the impact of abortion on women’s health and safety.
When not applied to abortion, admitting privileges are just as sensible, but surely less controversial. To argue that admitting privileges are unnecessary because complications are rare is akin in principle to arguing that health insurance is unnecessary for healthy individuals. We will have to wait and see in a month’s time whether the abortion providers are granted admitting privileges, and if not, what other challenges and decisions will unfold.
Genevieve Plaster is a research assistant at the Charlotte Lozier Institute.
1/21/2013: Charlotte Lozier Institute President Chuck Donovan discusses the importance of accurate and reliable abortion reporting in the states at the New York Times