On October 6, 2017, the Center for Consumer Information and Insurance Oversight (CCIIO) released a new bulletin regarding the coverage of abortion by qualified health plans (QHPs) sold through the ACA marketplaces. The bulletin provides additional guidance on how rules and restrictions on abortion coverage will be enforced by federal officials beginning in plan year 2018.

The ACA And Abortion Coverage

Coverage of abortion was one of the most contentious and last resolved issues in the debate over the ACA. The final Senate compromise, which was adopted as part of the ACA, largely reinforces the Hyde Amendment, which has been included in annual Congressional appropriations legislation since the 1970s and prohibits the use of federal funds for abortion services unless the pregnancy is a result of rape or incest, or would endanger the woman’s life (non-Hyde abortions).

The ACA allows the coverage of abortion services through the marketplaces but includes a number of restrictions and requirements that insurers must follow before covering non-Hyde abortions. Many, though not all, of these restrictions are outlined in Section 1303 of the ACA, which includes specific rules related to the coverage of abortion services by QHPs and has been the subject of previous litigation. In particular, Section 1303:

  • Prohibits insurers from using any portion of premium tax credits or cost-sharing reduction payments to pay for non-Hyde abortion services;
  • Requires insurers to inform consumers in their summary of benefits and coverage that the QHP they are considering includes coverage of non-Hyde abortion services; and
  • Requires insurers that cover non-Hyde abortions to determine the cost of and then separately collect and segregate funds for non-Hyde abortion services.

Section 1303 further specifies that individuals who purchase insurance that covers abortions must pay at least one dollar into a separate account specifically designated for abortion. These segregated accounts are designed to help ensure that the accounts are 1) funded solely by the enrollee’s premium (rather than by the premium tax credit) and 2) used exclusively to fund non-Hyde abortion services. Section 1303 also allows states to ban the coverage of abortions by QHPs sold through the marketplaces: to date, twenty-six states have done so.  In an additional six states, no marketplace plans offered coverage for abortion during the 2016 plan year.  Two states—California and New York—require health plans to cover abortions, subject to an exception for multistate plans, at least one of which in each state must offer insurance without abortion coverage.

QHP issuer compliance has been erratic. According to a 2014 report from the Government Accountability Office, two of the 18 QHP issuers surveyed failed to collect the statutory minimum of $1 per enrollee per month while four failed to notify enrollees regarding the coverage of non-Hyde abortion services. (Only since 2016 have summary of benefits and coverage rules required disclosure)   Nearly all of the QHP issuers surveyed failed to collect separate payments or bill separately for non-Hyde abortion services. Following the GAO report, HHS provided additional guidance on the need for segregation of funds for abortion services in a 2015 regulatory preamble, identifying a number of ways for QHP issuers to satisfy this requirement under Section 1303.

What CCIIO Intends To Do

To further address these concerns, CCIIO’s bulletin reminds QHP issuers of their ongoing obligations under Section 1303 to 1) not seek premium tax credit payments or cost-sharing reduction reimbursement for coverage of non-Hyde abortion services; 2) provide an annual notice in the summary of benefits and coverage that describes whether non-Hyde abortion services are covered by the QHP; and 3) charge and collect no less than $1 per enrollee per month for coverage of non-Hyde abortion services and deposit such amounts collected into a separate allocation account that is used exclusively to cover non-Hyde abortions. Further, CCIIO explicitly directs QHP issuers to provide enrollees with a notice stating that a portion of the total premium amount owed is a separate payment for non-Hyde abortion services. This notice can be provided at the time of enrollment, on a monthly invoice that itemizes the premium charge for coverage of non-Hyde abortion services, or a separate monthly bill for such coverage

CCIIO also indicates that it will take a more active role in enforcement of Section 1303 for QHPs offered through the federal marketplace beginning in 2018 and will assess civil monetary penalties if needed.  Penalties of up to $100 per day per individual affected by a violation can be imposed. The bulletin urges state-based marketplace officials to adopt a similar approach to enforcement and explicitly states that CCIIO will enforce these standards if a state operating its own marketplace fails to do so. This enforcement stance also appears to be a shift away from the 2015 guidance, which had affirmed the role of states and state insurance commissioners as the primary entities responsible for implementing and enforcing Section 1303.

CCIIO is also considering additional steps to ensure compliance with Section 1303, including the possibility of revisiting the 2015 guidance and adding more meaningful notice to consumers at the point of sale, beyond the summary of benefits and coverage, on the federal marketplace website. This may include more prominently displaying whether a plan includes non-Hyde abortion services on HealthCare.gov.