Citing Coronavirus Concerns, NY Leads States Fighting Implementation of ACA Rule on Abortion Coverage

Working in the courts and through public pressure, and now citing the urgent need for full government focus on fighting the novel coronavirus pandemic, New York Attorney General Letitia James has called on the Trump administration to immediately delay implementation of an Affordable Care Act rule change that she and other states say will “threaten” women’s access to health insurance coverage for abortions.

In a news release linked to a three-page letter issued by seven state attorneys general to the U.S. Department Health and Human Services, James argued that “final implementation of the rule … threatens women’s access to abortion coverage, as well as jeopardizes health coverage of all consumers confused by the [would-be altered insurance] billing practice as the nation responds to a public health crisis requiring every resource of the federal government focused on battling COVID-19.”

The Department of Health and Human Services’ Final Rule, made final last December and set for implementation in June, reinterprets Section 1303 of the Affordable Care Act such that it would require separate abortion insurance billing, according to James and to the multistate coalition’s letter, which was issued Tuesday to HHS Secretary Alex Azar II and which also points to the states’ federal lawsuit launched in California in late January challenging the rule’s legality.

The letter to Azar and James’ news release notes that the Section 1303 reinterpretation would require that two separate health insurance bills be issued from qualified health plans participating in state exchanges, meaning “one [bill] for $1 for abortion coverage, and one for an amount attributable to all other health benefits, where if either payment is missed, [ACA] coverage is lost” for the insured.

“Despite five years of compliance with the separate payments and segregation of [abortion care] funds requirement of Section 1303, HHS has now finalized a rule which significantly alters how insurance companies bill consumers and how consumers pay for healthcare,” the state attorneys general, including James, wrote in their public letter to Azar.

The involved states and district, including New York, California, Colorado, Washington, D.C., Maryland, Oregon and Vermont, also contend in the letter that “the Final Rule is not only unnecessary, but administratively onerous and significantly expensive for States and their healthcare systems to implement mid-plan year.”

The states further say, “Moreover, the novel coronavirus (COVID-19) has taken an unprecedented toll on the States’ public health and economy. The response to this pandemic … demands that states and the federal government devote all possible resources to pandemic response and recovery efforts to safeguard the nation’s public health. Distracting the States’ health and insurance agencies with implementation obligations related to HHS’s non-time sensitive separate-billing Rule by June 27, 2020, is unwarranted, unnecessary, and jeopardizes public health and safety.”

HHS could not be reached for comment Wednesday.

In January, a coalition, including New York and California, filed a federal lawsuit in the Northern District of California seeking to vacate the final rule as illegal because it allegedly is contrary to the ACA, arbitrary and capricious, the HHS failed to follow the Administrative Procedure Act, and it  violates the U.S. Constitution’s 10th Amendment.

On March 31, the states filed a summary judgment motion asking for the California federal court to immediately rule in the lawsuit and stop the rule’s implementation, but that has not happened to date.

Said James in her news release Tuesday, “At a time when states and the federal government must use every resource as efficiently as possible, it is utterly reckless for the Trump Administration to continue to divert means away from responding to this pandemic just so they can further restrict women’s reproductive rights.”

She added, “This rule not only stands in direct contrast to federal directives issued by the Administration, but specifically threatens to kick individuals off their health plans as we battle a public health crisis, endangering us all. But the origin of this rule is no doubt rooted in the president’s anti-choice ideology that aims to take us backwards almost half a century, which is why our coalition will never stop fighting against this burdensome and controlling regulation that strips women of their constitutional right to an abortion.”