Of Mosquitoes and “Moral Convictions”: How Rolling Back the Affordable Care Act’s Contraceptive Mandate Jeopardizes Women’s and Children’s Health

By Linda C. Fentiman

December 5 is the deadline to submit comments on the Trump Administration's recent action to gut the Affordable Care Act’s contraceptive mandate, which requires employer-sponsored health plans to ensure women's access to free, effective contraception.  This decision, announced in October in two Interim Final Rules, threatens serious harm to American children, because of the risk that women who lack access to contraception will become pregnant, contract Zika, and unwittingly transmit the virus to their developing fetus.  Since 2015, as an exponentially expanding Zika epidemic swept across Latin America, the United States, and its territories, thousands of children around the globe have been born with microcephaly.  On the U.S. mainland alone, almost 100 children have been diagnosed with microcephaly or other Zika-associated birth defects.   In Florida, the Department of Health has recently reported a new, sexually transmitted, case of Zika in Miami-Dade County.  In 2017 alone, 225 cases of Zika infection were confirmed in Florida; 119 are pregnant women, and three infants have been born with congenital Zika syndrome.  New York City, more than 400 pregnant women have been diagnosed with Zika since January 2016 and at least 20 infants have been born with microcephaly or other Zika-associated birth defects.

             The World Health Organization, Centers for Disease Control (CDC), and other health agencies have scrambled to reduce Zika’s threat by controlling the mosquito population and minimizing the risk of sexual transmission of Zika.  The CDC have been particularly outspoken, urging women of reproductive age to consider Zika’s risks to a developing fetus when deciding whether to travel to a Zika-affected area and, indeed, whether to become pregnant at all.

    In the face of such a dangerous disease, the Trump Administration’s drastic action to limit contraceptive access is both short-sighted and flawed legally.  The Administration announced two new regulations in October authorizing expanded exemptions and accommodations for employers, universities, and other health plan sponsors who wished to deny women free access to FDA-approved contraception, based on the plan sponsor’s religious beliefs or “moral convictions” (82 Fed. Reg.47658 and 82 Fed. Reg. 47838).   No exemption or accommodation was provided for plan sponsors seeking to opt out of any other health care service.  These new rules make it quite likely that many, especially poor and middle-income, women, will be denied access to effective contraception.  While the Fact Sheet accompanying the regulations states that low-income women whose employers opt out may seek contraceptive care through community health centers it conveniently ignores the fact that pending Republican legislation seeks to dramatically reduce federal funding for family planning services, including contraception, and that Republican efforts to repeal the Affordable Care Act would have authorized states to deny Medicaid recipients coverage for such services.

            With infectious diseases like Zika, citizens expect government to take direct steps to minimize the chance of disease transmission and to advise them about how to protect themselves.  Those most at risk for contracting the Zika virus are, as usual, the poor, who live in substandard housing that fails to protect them from mosquitoes and lack financial and other resources to access effective healthcare, including contraception and abortion.  Further, in states like Florida and Texas, even women and girls with financial means are frequently prevented from obtaining the full range of reproductive health care by restrictive federal and state laws governing access to contraception and abortion.

Recent natural disasters compound the problem. Puerto Rico provides a striking example of the intersection of legal and economic barriers; similar problems exist in Florida and Texas.  In Puerto Rico, two-thirds of all pregnancies are unintended; recent rates in Florida and Texas were 58% and 56%, respectively. Like their counterparts on the mainland, many Puerto Rican women, both married and single, want effective contraception, especially long-acting reversible contraception (LARC), such as IUDS and hormonal implants, which prevent pregnancy most effectively.  However, until the ACA contraceptive mandate became law, LARC was out of reach for almost all middle-class and poor women because of its higher upfront costs. 

Today, Puerto Rican women of all economic strata face significant hurdles in controlling mosquitoes and accessing healthcare, due to Hurricane Maria’s massive destruction of island infrastructure.  Yet even before the hurricane struck, women living in Puerto Rico were at high risk of contracting Zika and of being unable to plan for the birth of a healthy child.  Since December 2015 more than 34,000 people have been infected with Zika in Puerto Rico, more than 3,300 of them pregnant women. Nearly 150 infants have been diagnosed with serious Zika-associated birth defects.

  Officials from the CDC and Puerto Rico's Department of Health have worked over the last two years to increase public awareness of the risks posed by Zika, expand access to effective contraception, and minimize Zika transmission to pregnant women.  However, since Hurricane Maria, efforts to combat Zika have largely stalled, as both federal and Puerto Rican government officials have focused on other pressing needs - food, safe drinking water, electricity, and other infrastructure repair.

In the face of recent natural disasters, the Trump Administration’s decision to gut access to contraceptive coverage threatens a public health emergency of immense proportion, risking the health of vulnerable women and children. At the very moment that women in Florida, Texas, Puerto Rico, and the U.S. Virgin Islands are in the greatest need of government assistance due to devastating hurricanes, the Administration has erected major barriers to contraception and effective family planning, limiting the ability of women and their families to make informed decisions about the risks of bringing a potentially disabled child into the world.  This directly contravenes the Affordable Care Act’s command 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; or (2) impedes timely access to health care services….” (42 U.S.C.A. § 18114).

While the Administration asserts that its new contraceptive coverage policy is necessary to preserve the religious freedom and moral convictions of employers and other health plan sponsors, its promulgation of two Interim Final Rules that limit only women’s healthcare access displays an utter disregard for the constitutional guarantees of equal protection, due process, and personal privacy.  Finally, the decision to publish these controversial regulations as Interim Final Rules, with no opportunity for public notice and comment before they go into effect, contravenes the essential requirements of agency rule-making in a democracy. 

Everyone committed to gender equity, access to preventative health care, and protecting the public from infectious diseases should consider commenting on the Interim Final Rules before the December 5 deadline.  Here is the link:  https://www.regulations.gov/comment?D=CMS-2014-0115-13773

Republicans Failed Because They Have No Idea What Kind of Health Care They Actually Want

by Robert I. Field

Not so long ago, much of the Republican Party stood united in a vision for health care. For 20 years, Party leaders from across the political spectrum coalesced around elements of a plan that would use the private market to broadly expand coverage.

The plan looked something like this. All Americans would be subject to a mandate to obtain health insurance for themselves and their families or pay a penalty along with their taxes. Most employers would be mandated to offer insurance to their workers. Those without access to employer-sponsored coverage would buy policies on an exchange directly from insurance companies, and insurers would be required to offer coverage regardless of an applicant’s health status. Subsidies would be available for those with low incomes, and those who were very poor would receive coverage under an expanded Medicaid program.

Sound familiar? It is the essence of Romneycare, the health reform plan enacted in Massachusetts in 2006 with the support of Republican governor Mitt Romney.

Romneycare emerged after more than 15 years of Republican efforts to implement such a system. It was originally devised by the Heritage Foundation, a conservative think-tank, in 1989. The concept was supported by 21 Republican senators in 1993, including many moderates, when it formed the basis of the Health Equity and Access Reform Today Act, an alternative to the Clinton plan that was then being debated in Congress.

Heritage encouraged the enactment of Romneycare in 2006 and subsequently touted the plan as a workable solution that should be implemented across the country.

And the concept formed the basis of a plan proposed in 2009 by two conservative Republicans, Representative Paul Ryan and Senator Tom Coburn, the Patients’ Choice Act.

Of course, the Republican market-based plan is also the core of the Affordable Care Act.

What happened when Democrats signed on to the approach? The Republican consensus immediately evaporated. Even Heritage turned against its own handiwork. As soon as the ACA was enacted in 2010, Republicans in Congress announced unbending opposition and began an unrelenting effort to “repeal and replace.”

But seven years later, that promise remains little more than a slogan. Republicans voted more than 60 times to repeal all or part of the ACA while Obama was president, knowing their votes were merely symbolic, since he was certain to veto any legislation that emerged.

And now that they control of both houses of Congress and the White House and have the chance to actually bring a plan to fruition, they can’t figure out what they want.

Republican conservatives want to eliminate any trace of the ACA, even if it means denying lifesaving health care to tens of millions of Americans. Moderates want to insure that whatever form a replacement takes, the ACA’s coverage gains are largely maintained. The Republican health care bill that failed in the Senate this week, the Better Care Reconciliation Act, meets the goals of neither wing.

President Trump can’t seem to decide what he wants, either.  He promised at the start of the presidential campaign that he would not reduce Medicaid spending, but his budget proposal includes major cuts.

The only unifying theme in Republican positions today is a desire to dismantle anything created by President Obama and his Democratic colleagues, even programs based largely on their own principles. That is hardly a vision for constructive public policy.

Crafting a complex government program requires painstaking work, including the arduous task of consensus building. It is not accomplished by hatching a plan through the secret deliberations of 13 senators, as Senate Republicans did in crafting the BCRA, and then rushing it to a vote.

But the laborious work of building programs and forging consensus is the essence of governing. That’s a lesson members of the Republican leadership do not seem to have learned. With their failure, at least so far, to either repeal or replace the ACA, they are now seeing the results.

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Previously posted on the Health Cents blog on Philly.com.

Can Trump Simply Stop Paying Subsidies to Insurance Companies?

By Elisabeth J. Ryan

In recent days, President Donald Trump announced, via Twitter, that "If a new HealthCare Bill is not approved quickly, BAILOUTS for Insurance Companies and BAILOUTS for Members of Congress will end very soon!"  He was presumably referring first to cost-sharing reduction subsidy payments to insurance companies required by the Affordable Care Act and, second, to the fact that members of Congress and their staff are required to buy health insurance on the ACA market instead of being allowed on the federal employee health plan.  However, unlike most people who purchase insurance via the marketplace, Congressional staffers still receive an employer subsidy.  Ending subsidy payments to insurance companies could be catastrophic to the market - so can Trump simply stop paying them?

Section 1402 of the Affordable Care Act mandates that insurers reduce the amount of cost-sharing that individuals are responsible for; in turn, the government pays the insurer subsidies in order to make up for the discounts passed onto consumers.  However, the House of Representatives sued the then-Obama administration in 2014, claiming that such subsidy payments were illegal and unconstitutional because Congress never made specific appropriations for them.  In May 2016, the federal district court decided in favor of the House , finding that the executive branch (the Department of Health and Human Services in this case) making payments to insurers in the absence of a specific Congressional appropriation to do so is illegal and must cease.  The judge stayed her order, however, pending appeal (or, as the Republicans hoped, a change in the law entirely).  This has left the payments in a sort of limbo - the Obama administration continued to pay the subsidies and, thus far, so has the Trump administration.  But he has been hinting for months that wants to stop that practice; in response, numerous state Attorneys General filed a motion to intervene in the case, fearing that Trump would drop the appeal and allow the order of non-payment to stand.  On August 1, the court granted the motion, ensuring that the appeal will at least continue.  A crucial legal questions remains: even if the district court's order is overturned, would that simply allow the administration to continue making payments or is there some mechanism to compel the payments?

The House has relied on the fact that a specific appropriation exists for section 1401 of the ACA, which grants tax credits to some individuals to offset their insurance purchase costs.  And because section 1402 (the insurance subsidies) is not specified in that or any other appropriation, the court agreed that no such appropriation exists.  However, as the Obama administration and now the state AGs argue, the 1401 appropriation also covers 1402; that is, indeed, the fund used currently to pay the subsidies. 

If the government stops paying the subsidies, there is little question that the insurance market will destabilize quickly and critically.  While the details may vary based on state law, insurers could drop participation in the marketplace for the rest of 2017, could choose not to be part of the marketplace in 2018 at all, and would certainly raise premium costs for consumers, perhaps as much as 20%.

If Trump does announce that he will cut off payment of the subsidies to the insurance companies – the next payment is due on August 21 – states, insurance companies, and perhaps even consumers would likely sue immediately.  Indeed, some states may be preparing to file an action before he even announces a decision.  As California Attorney General Xavier Becerra has said, “We’re not going to wait to find out what Donald Trump wants to do.  My team is ready to defend these subsidies in court.”  AG Becerra has characterized the President’s threats to end the subsidies as “extortionist tactics.”  

Of course, Congress could remove the uncertainty (at least temporarily) about whether the subsidy payments will continue by passing a specific appropriation and may be attempting a bipartisan solution to do so.  But unless and until that happens, the insurance marketplace - and the healthcare plans of millions of consumers - remains in a precarious position.