This is part one of Rewire’s series on the regulatory war on the Affordable Care Act. You can read the other pieces in the series that have been published so far here.
GOP infighting in the U.S. House of Representatives effectively killed Republicans’ unpopular American Health Care Act and by their own admission preserved President Obama’s signature health-care reform law as the law of the land—indefinitely. But the damage Republicans can do to the Affordable Care Act (ACA), the alternately vilified and venerated Obamacare, and protections for reproductive health care, remains a very real possibility.
“Even after that failure, we can’t rest on our laurels or feel like we’re quite safe yet,” Alexis Cole, policy manager for Unite for Reproductive and Gender Equity (URGE), a prominent reproductive justice group, told Rewire in a phone interview.
From their leadership perches in both the House and U.S. Senate, Republicans described a “three-pronged approach” to repealing and replacing Obamacare. Even with a repeal bill potentially out of the picture, they still have two prongs left in play. House Speaker Paul Ryan (R-WI) has delivered somewhat on prong three, passing a pair of insurance reform bills with varying degrees of bipartisan support that likely won’t hold up in the Senate.
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The second prong leaves crucial rollbacks up to the U.S. Department of Health and Human Services (HHS). By HHS Secretary Tom Price’s accounting, there are 1,442 citations in Obamacare providing discretion to the secretary. He pledged that HHS will “look at every single one.”
That doesn’t mean HHS can act on every single one.
Some policies are known as statutory. Because they live in the text of Obamacare, they are law. And they can’t be changed without changing the law, as congressional Republicans tried and failed to do.
Other policies are known as regulatory. After a bill becomes law, it’s up to the federal agencies to devise regulations for how the law will be enforced. Agencies often solicit input from the public and key stakeholders to devise guidance, rules, directives, and other documents that have the force of law.
That’s where the power of Price and his HHS lies.
Join Rewire for part one of our series exploring the stakes under the Trump administration—and how some lawmakers and advocates alike are fighting to stop the onslaught against reproductive health care.
Women’s Preventive Services
To understand Price’s regulatory end-game, we have to start with the law.
Obamacare requires health plans in the individual and small group markets to cover “essential health benefits.” The set of ten categories of health services include pregnancy, maternity, and newborn care, as well as a wide range of preventive services, including contraceptives.
Rep. Michael Burgess (R-TX), perhaps best known for his 2013 comments alleging that masturbating fetuses prove the need for an abortion ban, initially said that Republicans planned to punt repeal of the popular Obamacare benefits to HHS. The route appeared to make the most political sense for Republicans, given the backlash they faced over their attacks on Obamacare and Planned Parenthood.
As a member of the health-care policy-setting House Energy and Commerce Committee, however, Burgess might have clarified that HHS can’t formally repeal the essential health benefits because they live in the statute, not in the statute’s regulations. Perhaps that’s why ultra-conservative members of the House Freedom Caucus pressured Ryan into sacrificing the benefits writ large in the repeal legislation instead of just casting them off for Medicaid recipients—millions of the nation’s most marginalized people. And in the end, the concessions weren’t enough to appease the Freedom Caucus and save congressional Republicans’ repeal effort.
Although HHS can’t lawfully repeal the benefits, the agency can undermine them “by allowing insurers to cover fewer services while making us pay more, like for contraception, breastfeeding services and supplies, or other necessary services,” according to Destiny Lopez, co-director of All* Above All, a group dedicated to ending the Hyde Amendment’s discriminatory ban on federal funding for abortion care.
“We have to be vigilant or we could see higher co-pays, fewer options covered, and worse,” Lopez told Rewire in an email. “It’s incredibly difficult to predict.”
Price’s feelings about essential health benefits are well known. As a U.S. congressman from Georgia, he wrote a sweeping Obamacare repeal-and-replace bill, the Empowering Patients First Act of 2015, eliminating the benefits. But he’s swapped statutory power for regulatory power at HHS.
The question, then, is how Price proceeds as a part of the Trump administration. How can HHS effectively gut essential health benefits while leaving the framework in place, if in name only?
Under another part of an Obamacare statute, the Section 2713 Women’s Health Amendment, most private insurance plans, including employer plans, must fully cover the costs of what are known as “women’s preventive services,” though transgender and gender nonconforming people rely on the services too. The Health Resources and Services Administration (HRSA), an arm of HHS, defines which preventive services make the cut through regulations.
No-copay contraception, also known as Obamacare’s popular birth control benefit, lives in the HRSA regulatory guidelines last updated in December. So do eight more no-copay women’s preventive services: breast cancer screening for average-risk women, breastfeeding services and supplies, screening for cervical cancer, screening for gestational diabetes mellitus, screening for HIV infection, screening for interpersonal and domestic violence, counseling for STIs, and well-woman preventive visits.
In short, the essential health benefits provision statutorily requires insurers to cover certain benefits categories, including preventive services. The Women’s Health Amendment statutorily requires insurers to cover women’s preventive services at no cost to the consumer. The HRSA guidelines define those women’s preventive services through regulation.
The guidelines aren’t perfect. HRSA in December added breast cancer screening only for “average risk women,” but the mortality rate for Black women is about 40 percent higher than for white women, according to 2014 data. That’s why Christy Gamble, director of health policy and legislative affairs for the Black Women’s Health Imperative, is traveling the country to convince state policymakers, like those in New York, to fully cover far more expensive 3-D mammography that can better detect cancer in the dense breast tissue common among women of color, particularly Black women.
Gamble worries that if congressional Republicans make a second attempt at a health-care bill, “Price will start to figure out if the essential health benefits can possibly be, in his opinion, probably fine-tuned, or in our opinion, narrowed in scope.”
“He could narrowly define the types of screening, because cost may become an issue when you talk about anything that’s not the ‘traditional standard of care,’” Gamble said.
Breastfeeding services and supplies represent another major cost hurdle. Andrea Prasow, deputy Washington director at Human Rights Watch, described how Obamacare saved her the choice between work or breastfeeding in a blog post for the nonprofit, nongovernmental organization.
“My pump, which costs hundreds of dollars, was covered 100% by my insurance company,” Prasow wrote. “How will breastfeeding moms feed their babies if they can’t afford to buy a pump?”
Beyond the birth control benefit, could HHS eliminate some or all of the women’s preventive services?
Advocates aren’t sure.
A long-rumored religious imposition executive order from the Trump White House could give HHS legal cover to take radical action.
“There could be folks saying, ‘I don’t think I need to be covering someone’s screening for domestic violence, because I think a husband should be able to do whatever he wants to his wife, that’s my moral opinion,’” Mara Gandal-Powers, senior counsel for health and reproductive rights at the National Women’s Law Center (NWLC), said in a phone interview. “That would be real with this [executive order].”
Gandal-Powers and other advocates also couldn’t say exactly where Price stood on the other women’s preventive services.
“He’s been hostile towards the whole ACA,” Gandal-Powers said. “It’s hard for me to imagine someone coming out and saying, ‘I don’t think a woman should have the resources that she needs to breastfeed her child.’ But, he also is someone who has said, ‘[Not one] woman’ can’t afford birth control, and I find that really difficult to believe and imagine. I wish I could read his mind, but I really can’t.”
Still, eliminating the other women’s preventive services are “a harder sell, to some extent,” according to URGE’s Cole. Case in point: the pushback that occurred after Rep. John Shimkus (R-IL) questioned why men should have to pay for prenatal care and Sen. Pat Roberts (R-KS) scoffed at why men should have to pay for mammograms.
“There’s been so much fighting around this particular benefit since it was implemented,” Cole said. “It seems that may be the easiest way for them to start, as far as undermining the ACA.”
Birth Control Benefit
The birth control benefit warrants a closer look because HHS doesn’t merely need to write it out of the HRSA guidelines. As National Partnership for Women and Families (NPWF) Vice President Sarah Lipton-Lubet warned in an email, the administration could pull “multiple levers” to get rid of it.
Some necessary background: Religiously affiliated nonprofits are fighting to expand the accommodation that allows them to avoid compliance with the birth control benefit after notifying the administration. They want a full-blown exemption that applies to churches and other houses of worship.
Expanding the accommodation “could grant employers broader power to deny their employees access to contraceptive coverage, forcing them to pay more for contraception, or, in many cases, simply go without it,” Audrey Sandusky, director of advocacy and communications for the National Family Planning & Reproductive Health Association (NFPRHA), said in a phone interview.
The U.S. Supreme Court was supposed to intervene, but the justices punted two birth control benefit challenges, Zubik v. Burwell and Little Sisters of the Poor v. Burwell, to lower courts. Rewire’s Jessica Mason Pieklo explained how the Trump administration could roll back the birth control benefit by changing course from the Obama administration’s policy of vigorously defending legal challenges to it.
Advocates are already on guard.
“They could try to expand the accommodation, or refuse to enforce the benefit or defend it against litigation,” Lipton-Lubet said.
Should President Trump sign an executive order in the vein of the federal Religious Freedom Restoration Act and others sweeping through GOP-held state legislatures, he would give the administration a new line of defense in ongoing litigation—and a new license to discriminate on the basis of gender identity and sexual orientation.
A sweeping executive order would have “broad impact, not just on women’s health care and access to the women’s preventive services, but possible denial of services to LGBT individuals as well,” Janel George, NWLC’s director of federal reproductive rights and health, said in a phone interview. “That’s definitely a fear that we have.”
More than 55 million women received coverage for no-copay contraceptives and other preventive services as of December 2016, according to an NWLC fact sheet. And the total doesn’t necessarily account for the transgender and gender nonconforming people who, in their own words, also rely on the benefit.
“We know that even small cost-sharing requirements drastically reduce use of preventive services, especially when it comes to birth control,” URGE’s Cole said. Before Obamacare, she said one in three women—disproportionately young women and young women of color—struggled with the cost of contraceptives.
“We know we can’t go back to that,” Cole said.
Sandusky agreed. “I think pulling the benefit would be met with enormous public backlash,” she said. “It’s raised the bar of what people can expect [from insurance] and has been engraved in women’s lives.”
But Price doesn’t agree, leaving the fate of the benefit largely up to a man who believes “there’s not one” woman, and certainly no transgender or gender nonconforming person, who can’t afford birth control.
Price could work with the U.S. Food and Drug Administration (FDA) and the heads of other government agencies on yet another route to undermine the benefit.
The 18 FDA-approved forms of contraceptives covered without co-pay live in a joint frequently asked questions guidance document that HHS, the U.S. Department of Labor, and the U.S. Department of the Treasury issued in May 2015 “after many plans failed to provide a variety of birth control options at no co-pay under the regulation alone,” Cole said in a subsequent email.
Both Cole and Gandal-Powers described various scenarios under which the administration could jeopardize the birth control benefit. One possibility is additional guidance contradicting the old. Another: an interim final rule effective immediately rather than at the end of a notice-and-comment period typical under the federal rule-making process, even as comments continue to roll in.
There’s also the unknown under a president who infamously described health-care policy as “complicated.”
“I wouldn’t put it past [the administration] to do something else, something that’s not a typical way of doing things,” Gandal-Powers said.
NWLC’s briefs in Zubik v. Burwell and Hobby Lobby v. Burwell, she continued, spoke to the statute’s “legislative intent” for preventive services to include contraception. But Price and other members of Trump’s cabinet are all but certain to not let legislative intent stop them.
Price would surely have the FDA’s cooperation on declassifying as covered various forms of contraception. Trump’s FDA nominee, Dr. Scott Gottlieb, is known for extensive fear mongering about the birth control benefit, claiming, among other falsehoods, that women “risk losing far more than they’ll gain” under Obamacare.
Advocates charge that the opposite is true.
“This administration and the anti-woman leadership in Congress have made clear that they want to punish women who need an abortion, take away affordable birth control, and make it more costly and difficult to have a baby,” All* Above All’s Lopez said.
“No matter what we choose, women are punished and our health suffers.”