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Maria Ioanna Pantelaki and Chloe White
Maria Ioanna Pantelaki and Chloe White, Health Care: Access after Health Care Reform, 15 Georgetown Journal of Gender and the Law 95 (2014) (222 Footnotes).
I. Background of Health Care Access in the United States
A. Health Care Access Landscape prior to the ACA
When the ACA was enacted, the picture of health care access in the United States was grim. In 2008, 202.6 million Americans (67.2%) were covered by private health insurance. Of those insured, 177.5 million had employer-based insurance, 87.6 million had government health insurance, 43.0 million were covered by Medicare, and 42.8 million were covered by Medicaid.
Meanwhile, 14.9% of Americans (44.8 million people) were uninsured in 2008 and as many as 25 million more Americans, 60% more than in 2003, were considered underinsured. This rapid rise in the underinsured was largely the result of changes in insurance design that increased out-of-pocket costs.
Inadequate access has not been merely a plight of the poor; from 2003 to 2007, the underinsurance rate for those earning above 200% of the poverty line tripled. In practice, a huge swath of Americans, including many of those who are “adequately” insured, have had less access than they required: 68% of the uninsured, 53% of the underinsured, and 31% of the insured forewent needed *97 care, including doctor's visits, filling prescriptions, or following recommendations for tests or treatment. In addition, Americans have had substantial difficulty paying their out-of-pocket medical bills.
Under this patchwork system of health care coverage, women have fared especially poorly. In 2008, approximately 17.2 million American women lacked health insurance. Among low-income Americans (those under 100% of the federal poverty level), there were more uninsured women than men, a disparity that is problematic in light of women's unique health requirements, including reproductive services. These health requirements have a considerable impact on the cost of women's health care. Over the course of a lifetime, the average woman spends approximately 68% more than the average man on out-of-pocket medical expenses, a potential lifetime difference of $10,000. Private insurers recognize these cost differences and factor them into their coverage decisions.
Further, women tend to lack coverage through their own employment. According to the Kaiser Family Foundation, 35% of women have insurance coverage through their employer, 29% are covered as dependents through their spouses' employer, and 7% depend on Medicaid as their primary source of health care. In contrast, even though they are lower utilizers of health care, men are much more likely to have insurance coverage through their own employment: 49% of men have their own coverage, while only 13% are covered as dependents. Even after corrections for skill level, education, pay status, and job type, men are still much more likely than women to have job-based *98 insurance. Without access to quality health care, it is more difficult for women to adequately care for themselves and their families. These problems are exacerbated because women are more susceptible to premium increases, reductions in employers' family coverage contributions, divorce, and the death of their spouse, and are less likely to have retirement coverage or pensions through an employer to fund coverage gaps.
B. Key Changes Introduced under the ACA
The Patient Protection and Affordable Care Act (PPACA) was signed into law by President Obama on March 23, 2010, to establish comprehensive health reforms to deal with the growing number of uninsured and provide new consumer protections, extend health care benefits, lower health care costs, and increase choice and control over quality, affordable health care for all Americans. President Obama signed the Health Care and Education Reconciliation Act of 2010 (HCERA) on March 30, 2010, to amend the PPACA. The HCERA made a number of health-related financing and revenue adjustments to the PPACA, established the appropriate Congressional budget levels for fiscal years 2011 through 2020, and modified higher education assistance provisions.
As amended, the ACA is projected to reduce costs and provide coverage to more Americans, including coverage for an estimated 25 million of the 48 million Americans that are currently uninsured. To accomplish this goal, each of the nine titles of the ACA addresses a different component of reform that is intended to lower costs, increase access, and enhance consumer protections. To increase *99 access and lower costs of health insurance, the law establishes a mandate for most Americans to obtain health insurance and launches private insurance markets through a state-based health exchange or health insurance marketplace, which will allow consumers to comparison-shop for health insurance and enable some people to receive federal subsidies to reduce the cost of purchase coverage. In addition, the ACA expands the eligibility requirements for Medicaid, reducing the current growth of Medicare's payment rates for most services, and bringing fundamental changes to Part D of Medicare by closing the “Donut Hole” by 2020.
The ACA also enhances consumer protections and holds insurance companies more accountable by keeping premiums down, requiring coverage for preventative care, and preventing fraud and certain abuses, such as discrimination against Americans with pre-existing conditions.
Finally, although the law is estimated to cost $848 billion over a ten-year period, new excise taxes on insurance plans, fees on certain health-related industries, and cuts in government spending (largely in the Medicare program) are projected to fully offset the cost of the law and reduce the national budget deficit by an estimated $124 billion over the first decade, thus actually helping to stabilize the American economy.
Undoubtedly, achieving comprehensive health insurance reform will take many years. The ACA will be implemented over the course of a decade (20102020). It contains provisions that went into effect throughout 2010, including certain consumer protections that became effective on September 23, 2010, six months after enactment. The most substantial reform will go into effect in 2014 when the state-based insurance marketplaces will be operational and the mandate for most Americans to obtain health insurance will take effect. The last provisions are required to take effect before 2020. This section begins with the provisions already implemented in 2010 and then discusses the health reforms that will be implemented in 2014.
*100 1. Consumer Protections Effective September 23, 2010
Certain provisions of the ACA, known as the “Patient's Bill of Rights,” were implemented rapidly to prevent insurance companies from limiting health care. These provisions prevent insurance companies from denying coverage to children with pre-existing conditions, prohibit insurers from rescinding coverage based on an unintentional mistake, ban insurers from setting lifetime limits on how much can be paid to individual policyholders, and restrict annual limits on coverage for all plans starting on or after September 23, 2010.
All new individual and group plans are required to offer coverage to adult dependents up to twenty-six years old on their parents' health insurance policies. The right does not apply to existing group plans if the dependent is offered insurance through his or her employer. Discrimination against adults with pre-existing conditions will be prohibited in 2014. However, insurance companies are now prohibited from limiting or denying coverage to children under age nineteen solely based on a pre-existing condition.
In addition, the ACA prohibits rescission, the practice of health insurance companies retroactively rescinding benefits and declaring policies invalid from the day they began, due to honest mistakes on the enrollee's insurance application, unless the mistake is shown to be fraud or an intentional misrepresentation of material fact.
Furthermore, under the Act, insurance companies are banned from establishing lifetime limits on the dollar value of essential benefits for a participant in any health insurance plan, are currently restricted in setting the annual dollar limits a health plan can place on essential benefits and are required to phase-out annual *101 limits entirely in 2014. However, plans can still put an annual dollar limit and a lifetime dollar limit on spending for health care services that are not essential.
All health insurance plans must now provide free preventive care. Plans may not charge a deductible, co-pay, or coinsurance for certain preventive services such as recommended screenings (such as mammograms), vaccinations (such as measles and meningitis), and counseling (on topics such as quitting smoking and treating depression). The exclusion of charges applies with equal force to counseling, screening, and vaccines to ensure healthy pregnancies, and regular “well-baby” and “well-child” visits from birth to age twenty-one.
The ACA places a cap on administrative spending in order to help lower the costs to a consumer. Large group insurers are now required to spend at least 85% of premium dollars on direct medical care and efforts to improve the quality of care. If they spend less than 85% of premium dollars collected on healthcare, they must rebate policy-holders the difference.
The ACA also now ensures policy-holders' right to appeal or ask an insurance company to reconsider its decision to deny a payment for service or treatment. During the appeals process, the insurer must give its decision within seventy-two hours for denials of urgent care, thirty days for denials of non-urgent care that have not yet been received, and sixty days for denials of service already received. If the plan denies payment on appeal, it must explain why and explain how to appeal for an independent review of that decision.
Other changes implemented in 2010 include:
1. Effective through January 1, 2016, physicians and surgeons that practice in areas lacking primary care receive a 10% Medicare bonus.
*102 2. Limitations on contributions to individual flexible savings account that set-aside tax-free money for health costs.
3. An increase in the tax on spending money from health savings accounts on ineligible or non-medical expenses.
4. An increase in the Medicare tax rate by 0.9% (to 2.35%) on earnings over $250,000 for families and over $200,000 for individuals.
2. The Insurance Marketplace and Employer-Related Mandates in 2014 and 2015
The ACA will implement substantial health insurance market reforms in 2014. After January 1, 2014, all Americans are required to have health insurance or pay a tax penalty. This tax penalty for those who do not obtain health insurance is the most highly debated provision of the ACA. The penalty increases from $95 in 2014 to $325 in 2015, $695 in 2016, and is indexed thereafter. For individuals under eighteen it will be one-half that amount. Exceptions to this requirement are made for religious objectors, taxpayers for whom the lowest cost plan exceeds 8% of an individual's income, American Indians, those who receive a hardship waiver, incarcerated individuals, and those not covered for less than three months, among others.
In 2015, certain penalties will also apply to non-complying employers. Large employers with more than fifty employees that do not offer coverage will have to pay a fee of $2,000 for each full-time employee that receives federal premium tax credits to purchase health insurance, excluding the first thirty employees from the assessment. Employers that do offer coverage will have to pay the lesser of $3,000 for each employee receiving a federal premium credit or $2,000 for each full-time employee. Employers that do not offer coverage must provide free vouchers to lower-income employees to purchase a plan through the marketplace. The amount of the voucher will be equal to what the employee would have paid to get coverage under the employer's health plan. Employers with *103 fifty or fewer employees will be exempt from these requirements.
For small businesses with fewer than fifty employees and individuals who must purchase insurance on their own, each state will have an American Health Benefit Exchange and Small Business Health Options Program (SHOP) where people not covered through their employers can shop for health insurance at competitive rates. Additionally, a Consumer Operated and Oriented Plan (CO-OP) program will create non-profit health plans wherein all profits from the CO-OP plans will be applied to lower premiums, improve benefits, or improve the quality of health care delivered to members.
Through the marketplaces, also known as exchanges, consumers are able to compare several health insurance plans in their state and purchase the one that best fits their needs. Marketplaces are state-based, and if a state government has decided not to implement a marketplace itself, the federal government will operate that state's marketplace. Consumers can access Internet portals for their state marketplaces where they can compare health insurance coverage options and choose coverage that works best for them. The websites also include information for small businesses about available coverage options, reinsurance for early retirees, small business tax credits, and other information. A governmental agency or non-profit organization will administer the health plans offered through the marketplaces and will inspect policies to ensure they meet government standards. All plans will be required to provide essential health benefits, including ambulatory patient services, emergency services, hospitalization, maternity and newborn care, preventive and wellness services and chronic disease management, and pediatric services. The Act allows states to require benefits in addition to essential health benefits if states pay for the extra cost.
The health insurance policies currently offered through the exchanges are separated into four different types of policies under which the plan pays for the specified percentage of costs. The Bronze level is designed to cover 60% of the full actuarial value of the benefits provided under the plan, the Silver level covers 70%, the Gold level covers 80%, and the Platinum level covers 90%. All plans will have an out-of-pocket limit equal to the Health Savings Account (HSA), *104 which was $5,950 for individuals and $11,900 for families in 2011. Additionally, a lower-benefit ““catastrophic plan” will be offered to individuals under age 30 and to others who are exempt from the insurance mandate. Several new consumer protections will be offered across the individual and small group health insurance markets available through the exchange.
Low-income individuals and families with incomes up to 400% of the Federal Poverty Level (FPL) will be qualified to receive cost-sharing subsidies and premium tax credits to offset the cost of premiums through the exchange. The premium tax credit is calculated on a sliding scale starting with a credit for 2% of income for those at 100% of the FPL, and phasing out to a credit for 9.5% of income for those at 400% of poverty. The premium tax credit can be applied to each month. The tax credits are also refundable, so more moderate-income families that have little or no income tax liability can still benefit from the credit by getting a refund after they file their taxes. It can also be paid to an individual's insurance company in advance to help cover the cost of premiums. Individuals eligible for premium tax credits may also qualify for cost-sharing subsidies. The subsidy pays for percentages of the full value of the plan on a sliding scale from 94% for those with an income at 150% of the FPL, and phasing out to a subsidy for 70% for those with an income at 400% of the FPL. Out-of-pocket limits will also be reduced for enrollees with incomes up to 400% of the FPL. Further, those with incomes under 133% of the FPL will also be able to enroll in a newly expanded Medicaid program.
3. Improving Quality, Lowering Costs, and Expanding Access to Quality Care through 2020
In addition to the consumer protections implemented on September 23, 2010 and in 2014, several other important provisions will take effect throughout the *105 decade. First, the ACA makes insurance immediately more affordable by providing tax credits to small businesses to provide insurance coverage to workers. The full credit will be available to eligible businesses with ten or fewer employees and average annual disbursed wages of up to $25,000, while eligible businesses with up to twenty-five or fewer employees and average annual wages of up to $50,000 will be eligible for a smaller tax credit. The first phase of the provision provides up to four million eligible small businesses with tax credits that are worth up to 35% of the employer's contribution to the employees' health insurance if the employer contributes at least 50% of the premium cost. Small non-profit organizations may also receive up to a 25% credit. In 2014 and beyond, eligible employers who purchase coverage through the exchange will be able to receive a tax credit for two years of up to 50% of their contribution. Further, tax-exempt small businesses meeting the above requirements are eligible for tax credits of up to 35 percent of their contribution.
In addition, to help prevent cost hikes, the ACA provides $250 million in new grants to states to support efforts to review premium increases and requires insurance companies to justify their premium increases. Insurance companies with unjustified premium exchanges may not be able to participate in the new health insurance marketplace in 2014.
The ACA, furthermore, provides better access to quality care by offering expanded training opportunities, student loan forgiveness, and bonus payments to increase the number of primary care providers. The Act appropriated $11 billion to increase funding for community health centers, allowing them to serve some forty-four million patients by 2020.
The ACA seeks to simplify health insurance administration reduce administrative costs by progressively making changes to standardize billing by encouraging the electronic exchange of health information. For those seeking insurance coverage, HHS has created an internal portal where consumers can compare health insurance options in any state and tailor their coverage to their needs. The law accelerates HHS adoption of uniform standards and operating rules for the electronic transactions between providers and health plans that are governed under the Health Insurance Portability and Accountability Act (HIPPA). Insurance companies must now adopt a single set of operating rules for eligibility *106 verification, electronic funds transfers and health care payment and remittance, and health claims information, enrollment and disenrollment in a plan, health plan premium payments, and referral certification and authorization.
Finally, the ACA enhances efforts to prevent and detect fraud in Medicare, Medicaid, and CHIP, as well as in private insurance. The Act provides an additional $350 million to hire new officials to fight fraud in the health care system and requires data from Medicaid, Veterans Administration, Department of Defense, Social Security Insurance, and Indian Health Service to be housed in a central location to better prevent fraud. The Act increases screening procedures, oversight periods, and compliance programs to reduce waste, fraud, and abuse. Payments to Medicare or Medicaid providers may be withheld if a credible allegation of fraud has been made, and HHS has been given authority to impose stricter civil and monetary penalties on those who commit fraud.
4. Reforms to Medicare, Medicaid, and Children's Health Insurance Program (CHIP)
Medicare has been expanded under the ACA to improve quality, reduce costs and expand access to care. Beginning in 2011, states have had the option to expand state Medicaid coverage with federal funding. However, in 2014, Medicaid eligibility will extend nationally to all children, pregnant women, and individuals without dependent children under 65 who have incomes up to 133% of the Federal Poverty Level (FPL). These newly eligible adults will receive, at least, essential health benefits. States will receive 100% federal funding for the first three years to support this expanded coverage, tapering down to 90% federal funding in 2020 and beyond. Since Medicaid programs and providers will cover more patients after 2014, the Act increases state Medicaid payments and requires states to pay primary care physicians no less than 100% of Medicare payment rates in 2013 and 2014. The increase will be fully funded by the *107 federal government. Starting in 2011, primary care physicians also have begun receiving a 10% bonus payment every year for the following five years.
States also have new options for offering home- and community-based services, including extending full Medicaid benefits to individuals receiving home- and community-based services under a state plan. The new Community First Choice Option allows states to offer long-term home support and community-based care rather than institutional care to disabled individuals through Medicaid.
The ACA also includes several improvements to Medicare. For example, the Community Care Transitions Program will help high-risk patients avoid unnecessary hospital readmissions by coordinating care and connecting patients to services in their communities. As in the private industry, cost-sharing has been eliminated for preventative services in Medicare and Medicaid.
The ACA issues immediate remedies for the Medicare Part D coverage gap and provides for its permanent closure by 2020. Most Medicare drug plans have a coverage gap that defines the amount the Centers for Medicare and Medicaid Services (CMS) will reimburse to health plans for paying for prescription drugs. The Medicare Part D coverage gap, informally known as the “donut hole,” applies to a beneficiary's out-of-pocket drug costs between $2,930 and $4,700. After a Medicare beneficiary surpasses the prescription drug coverage limit ($2,930), the beneficiary is required to pay 100% prescription drug costs out-of-pocket until that amount reaches the “catastrophic” coverage threshold ($4,700 in 2012). After reaching the catastrophic threshold, CMS will pay for 95% of the drug costs and the beneficiary will pay 5%. To “fill” the donut hole, beneficiaries who fall within the coverage gap receive a one-time, tax free $250 rebate from HHS to help pay for prescriptions. HHS began mailing rebate checks in June 2010 and an estimated four million seniors will receive a rebate. Additionally, starting in 2011, the ACA began closing the donut hole by providing a 50% discount on the cost of brand-name drugs to seniors who reach the coverage gap. The Act further requires CMS to begin increasing the threshold amount that would place a beneficiary in the coverage gap, reduce the out-of-pocket amount that qualifies a beneficiary for catastrophic coverage, and provide additional measures each year until CMS accomplishes full coverage in *108 2020. It is estimated that the average senior who reaches the donut hole will save over $700 in 2011 and $3,000 by 2020.
The ACA also sought to improve the quality of Medicare by establishing a hospital Value-Based Purchasing program (VBP) in traditional Medicare on October 1, 2011. This program pays hospitals to improve the quality of care. Hospital performance is reported publicly, and quality measures include information relating to both common and high-cost conditions, including heart attacks, heart failure, pneumonia, surgical care, and health-care-associated infections, and patients' perception of care.
Finally, the ACA expands the Children's Health Insurance Program (CHIP). States are required to maintain current income eligibility levels for children in both Medicaid and CHIP until 2019 and extend funding for CHIP through 2015. Beginning in 2015, states may receive a 23% increase in matching CHIP funds, up to a cap of 100%. Eligible children who are otherwise unable to enroll in CHIP due to enrollment caps will be eligible for tax credits in the state-based exchanges.
C. Challenges to the ACA
Immediately upon enactment of the ACA, thirteen states challenged the legality of the new reform bill in the United States District Court for the Northern District of Florida. An additional thirteen states joined the lawsuit. These twenty-six states argued that the individual mandate provisions violated the Commerce Clause. Judge Roger Vinson denied the federal government's motion to dismiss in this case, and instead held on summary judgment that the *109 individual mandate provision violated the Commerce Clause. Judge Vinson reasoned that the Commerce Clause does not permit the Federal Government to regulate inactivity, and therefore, the refusal to purchase health insurance does not constitute economic activity that can be regulated under the Commerce Clause.
Furthermore, he held that because the statute omitted a severability clause, the entire statute was unconstitutional, not just the individual mandate provision. Vinson elected not to issue an injunction against the enforcement of the ACA, citing a “long-standing presumption” that the federal government would respect the court's decision. On August 12, 2011, a panel of the Eleventh Circuit, in a two-to-one decision upheld the district court's finding of unconstitutionality but ruled that the personal mandate provision could be severed. After the Department of Justice indicated that it would not appeal for en banc review from the Court of Appeals, the Supreme Court granted certiorari on November 14, 2011.
On June 28, 2012, in National Federation of Independent Business v. Sebelius, the Supreme Court largely upheld the Patient Protection and Affordable Care Act. The decision included an opinion by Chief Justice Roberts, an opinion by Justice Ginsburg, a dissenting opinion joined by Justices Scalia, Kennedy, Thomas and Alito, and a dissenting opinion by Justice Thomas.
The Court first addressed the Anti-Injunction Act issue. The Anti-Injunction Act prohibits challenges to a tax before the tax has gone into effect. As Chief Justice Roberts explained in his majority opinion, the Anti-Injunction Act only applies if Congress intended the payment to be treated as a tax. Because the ACA referred to the “shared responsibility payment” imposed by the individual mandate as a “penalty” instead of a “tax,” the Anti-Injunction Act did not apply to block further consideration of the case on its merits.
The Court then addressed the individual mandate. The Court found the provision exceeded Congress's powers under the Commerce Clause. Accepting the States' argument that the individual mandate created commerce, instead of regulating existing commerce, a majority found that allowing Congress to *110 compel commerce it intended to regulate would provide Congress with an unconstitutionally broad reach.
However, a majority of the Court ultimately upheld the individual mandate as constitutional under Congress's taxing powers. Although described as a “penalty,” the Justices held that because the “shared responsibility payment” could be reasonably construed to function as a tax, it was found to be constitutional under the Taxing Clause. Because a majority of the Court found that the individual mandate was constitutional, the Court did not consider the issue of severability.
Lastly, the Court considered the constitutionality of the ACA's Medicaid expansion under the Spending Clause. The ACA's Medicaid expansion would compel states to expand their Medicaid coverage to individuals at or under 133% of the federal poverty level, including extending coverage to financially eligible childless adults. The federal government would extend funds to the states to undertake the expansion, however if a state refused to expand its Medicaid coverage, section 1396(c) of the ACA would enable the federal government to penalize the state by not only withholding potential expansion funds, but by also withholding funding for existing Medicaid programs. Chief Justice Roberts, Justices Breyer, Kagan, Kennedy, Alito, Thomas and Scalia considered the Medicaid expansion unconstitutionally coercive under the Spending Clause. They accepted the States' argument that their reliance on federal funds to administer their Medicaid programs was such that if the federal government removed existing Medicaid funding to penalize states for refusing to expand coverage under their Medicaid programs that states would have no choice other than to accept the expansion.
A different composition of Justices, including Chief Justice Roberts, Justices Ginsburg, Breyer, Sotomayor and Kagan found that the remedy to the coercive nature of the Medicaid expansion was to strike the provision that would have allowed the federal government to penalize states by withholding existing funding. The federal government may still predicate Medicaid expansion funding on a state's compliance with the Medicaid expansion program, but the federal government may not remove current Medicaid funding to compel a state to comply to expand the program.
*111 II. Access to Health Care for Women Under the ACA
Many ACA provisions aimed at increasing access to insurance coverage may have disproportionate impacts on women. For example, because women are less likely than men to be uninsured through their jobs, more women than men may take advantage of new subsidies for purchasing health insurance on the individual market, expanded eligibility for Medicaid, and the option for young adults to remain on their parents' insurance plans. More directly, a number of the ACA provisions aim to increase access to health care services used predominantly or exclusively by women, provide new protections against sex discrimination in the provision of health care services, and fund new research programs and health education initiatives aimed at key women's health issues. For example, within the Medicaid program, the ACA provides states the option to expand eligibility for Medicaid-funded family planning services and provides coverage for smoking cessation services for pregnant women. In the new private insurance marketplace, the ACA allows for direct access to obstetric and gynecological care, requires insurers to cover maternity care, and requires insurers to cover preventive care and screenings without cost-sharing, including all FDA-approved contraceptives and other services designated by the Health Resources and Services Agency as particularly important for women. Together, these provisions should increase the resources available to pay for services accessed frequently or exclusively by women, so long as there are willing providers for the needed services.
The ACA does, however, restrict women's access to health care in one area: despite efforts by reproductive health and women's health advocates, the ACA places significant limits on insurance coverage of abortion.
*112 A. Expanding Access to Gender-Specific Health Care Services Through Medicaid
The Medicaid Family Planning State Option expands on and improves the existing Section 1115 waiver program that at least thirty-one states use to expand access to Medicaid-funded family planning services. Under existing Medicaid law, states seeking to add new eligibility groups or provide new services under their Medicaid programs can seek a Section 1115 waiver from the Centers for Medicare and Medicaid Services (CMS). Through this program, the Secretary of Health and Human Services can approve experimental projects that promote the objectives of Medicaid and give states additional flexibility to design and improve their Medicaid programs. Currently, thirty-one states use a Section 1115 waiver to expand eligibility for Medicaid-funded family planning services: three states provide eligibility to women for two years following a birth funded by Medicaid, two provide family planning services to women losing Medicaid coverage for any reason, and twenty-six states provide family planning benefits to women with eligible incomes, usually below 200% of the federal poverty level. States have implemented income-based eligibility expansions to provide family planning services to all women who are eligible for Medicaid-funded pregnancy care, achieving substantial savings to state Medicaid programs in the process. The ACA State Option provision allows states to simply elect, via a State Plan Amendment, to expand eligibility to a new category of non-pregnant women with incomes not exceeding a level set by the state, reducing administrative costs by removing the need to go through the cumbersome Section 1115 waiver process. The provision also gives states choices regarding verifying citizenship of applicants for Medicaid family planning coverage and allows “presumptive eligibility” for providers to treat apparently-eligible applicants while their applications are being processed by the state, with the assurance that the provider will be compensated for services provided before a final eligibility determination is made. As of September 2013, ten states have approved State Plan Amendments for family planning.
*113 B. Prohibition On Gender Rating in the Private Insurance Marketplace
The ACA provides new protections against sex discrimination in the private insurance marketplace, including banning “gender rating,” the practice of charging women higher premiums than men, often for the same service, by insurance companies and prohibiting discrimination on the basis of pre-existing conditions.
Under prior law, many insurers implemented gender rating policies to charge women more for health insurance, particularly in the individual market, arguing that providing insurance to women costs more because of their higher health care utilization rates (particularly in terms of obstetric and gynecological care, including contraceptive services, supplies, and pregnancy care). The ACA bans rate discrimination by qualified health plans except for a few specific categories: insurers may take into account geographic area, the number of individuals covered under the policy, and, subject to certain limits, age and tobacco use. The ratio between the highest rate charged and the lowest rate charged for age may not be greater than three to one, and for tobacco use, may not be greater than 1.5 to 1. However, these protections do not apply to the large group market, so insurers may still implement gender-rating policies in plans issued to larger employers. The ACA also includes a provision extending HIPPA's pre-existing condition exclusions to the individual and small group markets, which bars health-status based discrimination as to a number of conditions unique to or predominantly affecting women, including past history of a Cesarean section, past domestic violence victimizations, or breast or gynecological cancers.
C. Expanding Access to Gender-Specific Health Care Services in the Private Insurance Marketplace
In addition to expanding coverage through the Medicaid program, the ACA also provides for increased access to gender-specific services, including preventive and wellness services, by including these services as part of the essential health benefits package that must be covered by insurance plans participating in the new health insurance exchanges. In particular, the ACA requires that *114 qualified health plans cover maternity and newborn care and prescription drugs and devices, and it gives the Secretary of Health and Human Services discretion to expand the list of essential health benefits, provided the essential benefits package is “equal to the scope of benefits provided under a typical employer plan.” Additionally, the ACA requires coverage of certain preventive health services without cost-sharing requirements, including all evidence-based services rated ““A” or “B” by the United States Preventive Services Task Force (USPSTF), immunizations recommended by the Centers for Disease Control and Prevention (CDC), and, with respect to women, additional preventive services and screenings as provided in comprehensive guidelines promulgated by the Health Resources and Services Administration (HRSA). Final interim regulations detailing the required USPSTF grade “A” and “B” services and CDC recommended immunizations took effect in September 2010. Non-grandfathered plans are now required to provide USPSTF preventative services, including mammography for women over age forty; chemoprevention for women at high risk of breast cancer; screenings for cervical cancer, gonorrhea, chlamydia, and osteoporosis; and prenatal screenings and counseling, including promotion and support of breast-feeding during and after pregnancy. Non-grandfathered plans are also required to cover HPV vaccines for both boys and girls at no additional cost.
In 2010, HRSA tasked the Institute of Medicine (IOM) with examining the scope of women's preventive health services graded “A” and “B” by the USPSTF and identifying services and screenings necessary to fill gaps in the USPSTF recommendations. The HRSA preventive care guidelines, based on the IOM's recommendations, expanded women's health coverage beyond the essential health benefits package: the guidelines require no additional cost-sharing for annual well-woman visits, gestational diabetes screenings, annual screenings and counseling for sexually transmitted diseases and HIV, domestic violence *115 screening, breast feeding support and supplies including lactation pumps, and HPV DNA testing once every three years, regardless of pap smear results. The HRSA guidelines also require coverage of all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Non-grandfathered plans, except those maintained by religious employers, were required to provide these services with no cost-sharing in the first plan year beginning after August 1, 2012. Contraceptive coverage is not included in the USPSTF guidelines and was otherwise unavailable as a preventive service under the ACA; the HRSA guidelines, implemented through the ACA, therefore significantly expand access to reproductive health care for women.
Several faith groups, including the U.S. Conference of Catholic Bishops, strenuously objected to the inclusion of family planning services in the preventive services package. In response to objections that requiring plans sponsored by religious organizations (not religious employers like houses of worship) to cover contraceptive services would infringe on religious freedom, the final regulations allow non-profit employers with religious objections to abstain from directly providing or financing employee contraceptive coverage. With regard to insured health plans, including student health plans, the organization should notify its insurer of its objection to contraception coverage. The insurer then directly provides enrollees with contraception coverage. Similarly, for self-insured plans, organizations will notify the third-party administrator responsible for administering the employer's group health plan of its objection, and the administrator will be responsible for offering employees contraceptive coverage directly, without charge. The final rule allows employers a grace period to adjust to the new rule, requiring compliance by January 1, 2014.
Some for-profit and non-profit companies and organizations have filed suit against the federal government both before and after the promulgation of this final rule, objecting to required coverage of contraceptive services. To date, non-profit and for-profit companies have filed over eighty lawsuits challenging *116 the ACA contraception coverage requirements. The plaintiffs in these suits typically allege that the mandate violates the Religious Freedom Restoration Act (RFRA), which requires that strict scrutiny be applied under the Free Exercise Clause of the First Amendment, as well as the First and Fifth Amendments and the Administrative Procedure Act. The owners of these companies claim that the entities take on and exercise faith of their owners; just as corporations are persons and are protected by the Free Speech clause of the First Amendment, so too are corporations protected by the First Amendment's Freedom of Religion Clause. As of November 1, 2013, four federal courts of appeals have ruled on the issue. In Hobby Lobby Stores, Inc. v. Sebelius, the Tenth Circuit ruled for the plaintiffs, saying that a corporation is a person under RFRA and has rights under the Free Exercise Clause. Similarly, in Gilardi v. HHS, the DC Circuit ruled that a corporation can exercise religion and is protected in doing so by the First Amendment Free Exercise clause. By contrast, the Sixth Circuit in Autocam Corp. v. Sebelius ruled that a corporation is not a person who can exercise religion under RFRA, and the Third Circuit in Conestoga Wood Specialties Corp. v. Sebelius averred that a corporation cannot engage in religious exercise under the First Amendment. On November 26th, 2013, the Supreme Court granted certiorari in Hobby Lobby Stores, Inc. v. Sebelius. Arguments will be held in the case on March 25, 2014.
D. Increased Funding for Health Research, Education, and Outreach Programs Targeting Women and Gender-Specific Disease
The ACA also provides funding for a number of new programs focusing on maternal and child health and breast health for young women, as well as for *117 research conducted by women's health offices at various federal agencies. These broader health promotion efforts are predominantly aimed at improving access to information and community- and clinically-based preventive services. These initiatives include grants to states to develop and implement Maternal, Infant and Early Childhood Visitation models targeted at improving maternal and newborn health, parenting skills, and school readiness. In addition, the ACA establishes a grant program to states for the establishment of systems to provide services to those with or at risk for postpartum conditions and their families, including outpatient and home-based case management and treatment, delivering or enhancing inpatient services, improving the quality of other support services (such as attendant care, homemaker assistance, and counseling), and providing education and outreach services aimed at earlier diagnosis of postpartum depression. The ACA also seeks to improve maternal and child health by reducing barriers to breastfeeding, requiring large employers to provide reasonable breaks and a private location for employees to express breast milk.
The ACA includes a number of health education programs that particularly target women, including funding for a public education campaign aimed at improving breast health in young women and encouraging early diagnostic testing for those at high risk for breast cancer. This new initiative includes outreach to the public and to medical professionals, prevention research activities to be conducted by the CDC, and grants to states to provide information and resources directed at young women diagnosed with breast cancer and preneoplastic breast disease.
The ACA also includes funding to states for a new comprehensive sexual education program, aimed at educating school-aged children about healthy relationships, personal responsibility, abstinence, contraception, and sexually transmitted diseases, while continuing funding for abstinence-only education programs.
Finally, the Department of Health and Human Services (HHS) has also begun implementation of ACA provisions requiring standardization of health data collection. In 2011, HHS issued a notice of proposed data collection standards that would improve data collection in national population health surveys and facilitate evaluation of and response to health disparities by population subgroup.*118 In addition to questions about race, sex, ethnicity, primary language, and disability status, the Department is developing standardized approaches for collecting data on sexual orientation and gender identity. Recognizing that LGBT individuals and families may face health disparities in insurance coverage and access to healthcare services but that available data are so limited as to prevent a meaningful assessment of these disparities, HHS has developed a timeline for LGBT data collection. The 2013 National Health Interview Survey included a sexual orientation-specific question, with results expected in 2014.
E. Limits on Coverage of Abortion Services
Although the ACA contains provisions expected to increase access to affordable health insurance and health services for women, the ACA continues a trend, seen in other federal health care programs, of segregating certain reproductive health services and subjecting them to unique additional requirements and funding restrictions. In addition to religious employer exemptions to contraception coverage requirements, the ACA limits abortion coverage for both public and private plans.
Passage of the ACA in the House could only be assured after guarantees regarding abortion were offered to anti-abortion Democrats. These guarantees included an executive order on abortion coverage under the ACA signed by President Obama directly after the law's enactment. The executive order reaffirms the ACA's application of the Hyde Amendment, which prohibits federal funding of abortions except in the case of rape or incest or to save the life of the woman, to the new health insurance marketplaces and to community health centers that receive federal funding. The ACA, together with this executive order, restricts access to abortion care in a number of ways, including restrictions that go well beyond the scope of the Hyde Amendment. As enacted, the law restricts access to abortion care through funding restrictions, a blanket non- *119 preemption provision, a state opt-out provision, and a non-reciprocal “conscience clause.” Under the ACA, qualified health plans have a choice of whether to provide abortion coverage and cannot be required to provide coverage for abortion care as part of the essential benefits package, and federal funds may not be used to provide coverage of abortion services in any community health insurance options established by the states. Each state exchange, however, must include at least one plan that provides coverage for abortion care (including those abortions allowed under Hyde and those that are not). Qualified health plans providing coverage for abortion services not funded under Hyde must segregate the funds they use for abortion coverage from any federal funds they receive. To ensure that no taxpayer funds are used for non-Hyde abortions, insurers choosing to cover abortion services must collect two payments from individuals receiving federal subsidies, one for the estimated actuarial value of abortion care and one for other services. Other funding restrictions in the bill include a provision banning school-based health centers providing abortion care from receiving new grants to improve school-based health services and a provision restricting new Indian Health improvement funds from paying for non-Hyde abortions.
Additionally, the ACA includes a blanket non-preemption provision, providing that the new legislation does not preempt any state or federal laws regarding the provision or funding of abortion care, including parental notification and consent statutes. The ACA also provides a sweeping, non-reciprocal conscience provision, prohibiting discrimination against individual health care providers and health care facilities that do not “provide, pay for, provide coverage of or refer for abortion,” but provides no similar protections for those facilities that do provide, fund, and refer for abortion care. Finally, the ACA permits states to prohibit qualified health plans participating in their health insurance exchanges from providing abortion services, which over twenty states have already done.
The abortion coverage that is permitted under the ACA has been heavily *120 scrutinized since the law was enacted. Two bills passed the House in 2011 that would have prohibited health care plans whose subscribers receive health care credits under the ACA from covering abortions, except in cases of rape, incest or to save the life of the woman: the No Taxpayer Funding for Abortion Act, and the Protect Life Act. The Senate passed neither bill, and the President has indicated he would veto similar bills. Nevertheless, debate continues over the appropriate scope of abortion coverage under the ACA and the extent to which the law may disincentivize abortion coverage.
Moreover, because the provisions regarding the new health insurance exchanges are not yet in effect, it is unclear what the impact of these restrictions on abortion coverage will be. During congressional debate on the ACA's restrictions on abortion, advocates expressed significant concern that the hurdles imposed by these restrictions would lead insurers to drop coverage of abortion services in part because of the inconvenience of complying with the segregation requirements and the obligation to offer multiple plans. Furthermore, while the exchanges would not include large employers, many advocates were concerned that insurers would eventually drop abortion coverage from large group plans as well because of a kind of “standardizing effect” of the essential benefits package required for qualified health plans on non-exchange plans offered by a given insurer. At least one commentator expressed concern about the significant disparate impact the new abortion restrictions would have on lower-income women, noting that these restrictions do not apply to the largest federal subsidy for health insurance: the $250-million-per-year tax exemption for employer-sponsored health insurance.
Conclusion
As the ACA is set to unfold continuously over the decade, many of its effects remain to be seen. Many parties, from the federal government to policy advocacy groups, are actively monitoring its implementation and collecting data about the new status of health care access in America. Legislative and regulatory updates combined with legal challenges ensure that the relative roles of insurers, patients, *121 and providers will not be settled for some time to come. The law continues to be contentious: during the September-October 2013 government shutdown, Congressional Republicans demanded, ultimately unsuccessfully, that government funding be made contingent on the delay or defunding of the ACA. Implementation of the ACA been fraught with difficulties; for example, the Healthcare.gov site, through which people can browse and apply for insurance plans on the marketplaces, has been riddled with technical difficulties and problems. The ACA is sure to remain a divisive issue, even as implementation goes forward and its full impact is realized.
