November 1, 2012 Scott Ponaman, President of Ponaman Healthcare Consulting

MEMORANDUM
DATE:
November 1, 2012
TO:
Scott Ponaman, President of Ponaman Healthcare Consulting
Claudette Edgar, Administrative Assistant
FROM:
Jessica Ponaman, Contract Attorney
1. Background
A major concern of Congress in passing the Patient Protection and Affordable Care Act
(hereinafter “ACA”) was to improve women’s health and ameliorate the disadvantages
and discrimination women face in access to healthcare and health insurance coverage.
By mandating that insurers provide coverage to all who seek it, regardless of health
status, the ACA remedies long-standing insurer practices of refusing to sell insurance to
women with pre-existing conditions, such as pregnancy, a previous caesarean section,
or a history of having survived domestic abuse. Moreover, the ACA explicitly targets
specific practices that discriminate or create a disadvantage for women. These
practices include charging women more for insurance coverage based solely on their
sex and refusing to cover women for essential services like maternity care.
The ACA prohibits discrimination on the basis of sex, race, national origin, disability, or
age in health programs receiving federal financial assistance, as well as discrimination
by programs administered by executive agencies or any entity established under Title I
of the ACA (such as the Health Insurance Exchanges). This nondiscrimination provision
is groundbreaking in that it is the first time federal law has ever broadly prohibited sex
discrimination in health care and health insurance. The ACA provides a legal remedy to
individual women who experience discrimination at the hands of health insurers,
hospitals, and other healthcare institutions, or other health programs.
The following is a comprehensive outline which details both the ACA provisions that aim
to combat discriminatory practices against women and how the ACA deviates from
previous existing medical and insurance coverage practices.
2. Literature Review
a. Title I: Quality, Affordable Healthcare for All Americans
With respect to women’s health, Title I requires health insurance companies to include
1
coverage for maternity and newborn care, extend coverage to individuals with preexisting conditions, and prohibits discriminatory insurance practices with regard to
gender. Moreover, Title I also addresses reforms in the area of preventive medicine,
medical research, and community outreach in health education.
i.
Maternity, Newborn Care and Abortions, ACA §§1302, 1303
The ACA outlines specific benefits that must be included in any healthcare plan. These
essential health benefits must include maternity and newborn care, and take into
account the health care needs of diverse segments of the population, including women,
children, persons with disabilities and other groups. Furthermore, the ACA prohibits outof-pocket limits that are greater than the limits for Health Savings Accounts ($2,000 for
individuals and $4,000 for families).
Abortions cannot be a mandated benefit as part of a minimum benefits package. A
qualified plan may either not provide abortion services, or cover only those abortions
allowed under Hyde (rape, incest, and life or endangerment to the mother). States may
require the coverage of additional benefits, but must assume the costs associated with
these benefits. No federal funding may go to support abortion practices.
Approximately 85% of women in the United States give birth by the age of 44. Maternity
care is one of the most common types of medical care that women of reproductive age
receive. However, a vast majority of the individual market insurance plans in 2009 did
not offer any maternity coverage, while others required women to pay high
supplemental feeds to obtain even limited coverage. A 2009 study of 3,600 individual
market plans around the United States found that only 13 percent included any
coverage for maternity care.1 Many of the maternity care plans limited total maximum
benefits to $3,000-$5,000, when the average cost for an uncomplicated hospital-based
vaginal birth was $7,488 (in 2006). This figure does not include any prenatal or
postpartum care.
Beginning in 2014, new health plans in the individual and small-group markets must
cover maternity and newborn care as essential health benefits. Moreover, health plans
will no longer be permitted to require prior approval for women seeking obstetric or
gynecological care. This will ensure greater access to the prenatal care that is essential
to healthy pregnancy and birth.
ii.
Pre-existing Conditions and Gender Rating, ACA §§ 1101, 2701,
2704
A group health plan and a health insurance issuer offering group or individual health
insurance coverage may not impose any preexisting condition or gender exclusion with
respect to such plan or coverage. Approximately five billion dollars is set aside for the
implementation of these new policies.
1
H.R. Rep. 111-299(III) at 104 (October 8, 2009).
2
Women are especially affected by preexisting condition denials because they are more
likely than men to suffer from chronic conditions requiring ongoing treatment, like
asthma or diabetes.2 In addition, many preexisting conditions previously excluded by
insurers exclusively affect women. For example, women have been charged
significantly more for coverage because they had previously given birth by Caesarean
section.3 Other women have been denied coverage altogether unless they have been
sterilized or were no longer of child-bearing age, or have been subject to an
exclusionary period during which the insurer will not cover costs related to Caesarean
sections or pregnancy.4
Prior to the enactment of the ACA, domestic violence and sexual assault were grounds
for denials based on preexisting conditions. In 2006, attorney Jody Neal-Post tried to
get health insurance but was rejected. Her insurer explained that her medical history
made her a higher risk, as she would be more likely to end up in an emergency room in
need of care. Nearly 1.3 million American women are victims of physical assault by an
intimate partner each year, and 85% of domestic violence victims are women.5 Some
women have been denied health insurance coverage because they have previously
received treatment for sexual assault. For instance, insurance agent Chris Turner
received anti-HIV preventative medication after she was sexually assaulted in 2002.6 As
a result, she could not obtain health insurance for three years; insurers refused to
extend coverage based on the anti-HIV medication, even though she tested negative for
HIV.7
The widespread insurer practice of “gender-rating”—charging women higher premiums
than men of the same age, has long made insurance prohibitively more costly for
women and businesses that employ them. Prior to the ACA, an overwhelming majority
of states still permitted this discriminatory practice; in these states, 95% of surveyed
best-selling plans charged a 40 year-old woman more than a 40 year-old man for
identical coverage.8
2
H.R.Rep. 111-388 at 70 (2009).
What Women Want: Equal Benefits for Equal Premiums, Hearing before the Senate Comm. On
Health, Education, Labor and Pensions, 111th Congress (October 15, 2009) (Testimony of Marcia
D. Greenberger, President, National Women’s Law Center). Available at
http://help.senate.gov/imo/media/doc/Greenberger.pdf.
4
See , e.g., 155 Cong. Rec. S10264 (October 8, 2009).
5
Melissa Hart, Brief of The National Women’s Law Center. As Amici curiae in support of
Petitioner on the Minimum Coverage Provision, Dept. Of Health and Human Services v. State of
Florida, WL 160240 (2012).
6
Id. at 27.
7
Id.
8
Bridget Courtot, What Women Want: Equal Benefits for Equal Premiums, National Women’s
Law Center (May 6, 2009). Accessed at:
http://www.nwlc.org/sites/default/diles/pdfs/stillnowheretoturn.pdf
3
3
The ACA prohibits insurance companies from denying coverage based on preexisting
conditions and puts an end to discriminatory gender rating practices. 9 Insurance
companies may not deny coverage to individuals who suffer from any preexisting
condition, nor may insurance companies charge an individual more for coverage on the
basis of gender.
iii.
Preventive Care, ACA § 2713
A group health plan and a health insurance issuer offering group or individual health
insurance coverage must, at a minimum, provide coverage for preventive healthcare
services, including breast cancer and cervical cancer screening, mammography and
breast cancer prevention.
In 2007, over 50% of women expressed difficulties in access to preventive services due
to the cost of such basic care.10 Approximately 6.8 million low-income women would
gain health insurance, potentially increasing the annual demand for cancer screenings
initially by about 500,000 mammograms and 1.3 million Pap tests.11
b. Title II: The Role of Public Programs
Title II enhances community-based care for Americans with disabilities and provides
states with opportunities to expand home care services to people with long-term care
needs. By 2014, the ACA will encourage states to adopt strategies to improve care and
the coordination of services for Medicare and Medicaid beneficiaries.
Women comprise about three-quarters of Medicaid’s non-elderly adult beneficiaries;
more than one in ten women receives coverage through Medicaid. 12 Nevertheless,
women living in extreme poverty were unlikely to qualify for Medicaid services prior to
the ACA. The Medicaid expansion under the ACA will cover an additional 8.4 million
women by 2014. This is roughly $30,000 a year for a family of four or $14,050 for a
single adult.13
Title II encourages states to adopt a Medicaid expansion plan, conduct target outreach
to vulnerable populations, and issue state subsidies to providers who administer
prenatal labor and delivery services in freestanding birth centers.
i.
Medicaid Expansion, ACA § 2001
9
42 U.S.C. § 300(g)(g) (2009).
Center for Disease Control, Health Care Reform and Women’s Insurance Coverage for Breast
and Cervical Cancer Screening, (2010). Accessed at:
http://www.cdc.gov/pcd/issues/2012/12_0069.htm.
11
Id.
12
Kaiser Family Foundation, Women’s Health Insurance Coverage (2011). Accessed at:
http://www.kff.org/womenshealth/upload/6000-091.pdf
13
Id.
10
4
The Medicaid expansion states will extend Medicaid coverage for the lowest income
population at or below 133% of the poverty line. A state is an expansion state if, on the
date of the enactment of the ACA, the state offers health benefits coverage statewide to
parents and non-pregnant, childless adults whose income is at least 100 percent of the
poverty line.
In 2014, all Americans with cancer under 133% of the Federal Poverty Level, regardless
of cancer site, will be eligible for Medicaid coverage.14 Increased access to care,
especially for a population at higher risk of cancer, will help to detect diseases such as
cancer early, when there are more options for treatment and better chances of
survival.15
ii.
Freestanding Birth Centers and Family Planning Services , ACA
§§2301, 2302
By 2014, states will provide separate payments to providers administering prenatal
labor and delivery or postpartum care in a freestanding birth center. These services
include nurses, midwives and other providers of services such as birth attendants
recognized under state law.
In addition, the ACA adds a new optional categorically needy eligibility group to
Medicaid. This group is comprised of 1) non-pregnant individuals with income up to the
highest level applicable to pregnant women covered under Medicaid; and 2) individuals
eligible under the standard and processes of existing waivers. Women who qualify
would have benefits for family planning services and supplies, including related medical
diagnostics and treatment services (i.e. birth control and pregnancy tests).
iii.
Community Outreach For At-risk Communities, ACA §2951
By 2014, each state must conduct a statewide needs assessment that identifies
communities with concentrations of premature birth, low-birth weight infants and other
indicators of at risk prenatal, maternal, newborn or child health with respect to poverty,
crime, and domestic violence.
iv.
Maternal Home Visiting Programs and Postpartum Depression,
ACA §§2951, 2952
The ACA provides funding to states, tribes, and territories to develop and implement
one or more evidence-based Maternal, Infant and Early Childhood Visitation models.
The objective is to reduce infant mortality and its related causes through improvements
14
Cancer Action Network, Affordable Care Act: Medicaid Expansion (April 10, 2010). Accessed
at: http://www.acscan.org/pdf/healthcare/implementation/factsheets/hcr-medicaidexpansion.pdf
15
Id.
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in prenatal, maternal and newborn health, child health and development, parenting
skills, school readiness, juvenile delinquency, and family economic self-sufficiency.
In addition, by 2014, states will ensure that projects funded under the ACA provide
education and services for the diagnosis and management of postpartum conditions.
Such objectives may be aimed at:
o Delivery or enhancing outpatient and home-based health and support
services;
o Delivering or enhancing inpatient care management services that ensure
the well-being of the mother and family and the future development of the
infant;
o Improving the quality availability and organization of healthcare and
support services (including transportation services, attendant care,
homemaker services, day or respite care and providing counseling on
financial assistance and insurance); and
o Providing education about postpartum conditions to promote earlier
diagnosis and treatment.
c.
Title III: Improving the Quality and Efficiency of Health Care
The ACA takes important steps to ensure a commitment to women’s health. The Act
provides focused efforts for women’s health by promoting and encouraging medical
homes and facilities to address women’s unique health needs. In addition, the ACA
establishes the Office on Women’s Health whose primary purpose is to work in
conjunction with other government departments in addressing health concerns specific
to women.
i.
Medical Homes for Women’s Health Needs, ACA §3021
The Center for Medicare and Medicaid Innovation (a subdivision of the Centers for
Medicare & Medicaid Services) will be responsible for promoting medical homes that
address women’s unique health care needs.
ii.
The Office on Women’s Health, ACA §3509
The ACA creates the Office on Women’s Health whose goals are to:
o Establish short-range and long-range goals and objectives within the
Department of Health and Human Services and coordinate with other
appropriate offices on activities within the department that relate to
disease prevention, health promotion, service delivery, research, and
public and health care professional education, for issues of particular
concern to women throughout their lifespan;
o Provide expert advice concerning scientific, legal, ethical, and policy
issues relating to women’s health;
o Monitor the Department of Health and Human Services’ offices, agencies,
and regional activities regarding women’s health and identify needs
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regarding the coordination of activities, including intramural and
extramural multidisciplinary activities;
o Establish a Department of Health and Human Services Coordinating
Committee on Women’s Health;
o Establish a National Women’s Health Information Center to facilitate the
exchange of information regarding matters relating to health information,
health promotion, preventive health services, research advances, and
education in the appropriate use of health care; and
o Coordinate efforts to promote women’s health programs and policies with
the private sector.
d.
Title IV: Prevention of Chronic Disease and Improving Public Health
Title IV of the ACA extends Medicare coverage for general wellness visits, which will be
aimed at providing individuals with a personalized health risk assessment and
prevention plan. In addition, Title IV also includes counseling and pharmacotherapy to
end tobacco use in pregnant women and requires employers to provide adequate
facilities for breastfeeding.
i.
Medicare Coverage of Wellness Visits, ACA §4103
The ACA provides coverage, with no co-payment or deductible, for an annual wellness
visit and personalized prevention plan services. The personalized prevention plan would
take into account the findings of the health risk assessment and include elements such
as a five- to ten-year screening schedule; a list of identified risk factors and conditions
and a strategy to address them; health advice and referral to education and preventive
counseling or community-based interventions to address modifiable risk factors such as
physical activity, smoking and nutrition.
ii.
Tobacco Use By Pregnant Women, ACA §§ 4107(a)
This provision amends Section 1905 of the Social Security Act by requiring that health
insurance companies cover counseling and pharmacotherapy for cessation of tobacco
use by pregnant women (including the coverage of prescription and non-prescription
tobacco cessation agencies approved by the FDA).
iii.
Breastfeeding for Working Mothers, ACA § 4207
The ACA amends the Fair Labor Standards Act of 1938 by providing that an employer
must allow for a reasonable break time for an employee to express breast milk for her
nursing child for one year after the child’s birth. Moreover, employers must have
accommodations to express milk, other than a bathroom, that is shielded from view and
free from intrusion from co-workers and the public.
Prior to the enactment of the ACA, there were no legal requirements or regulations for
breastfeeding for working mothers. Under the ACA, employers with more than 50
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employees must abide by these regulations, unless doing so would impose an undue
burden or financial hardship.16
e.
Title IV: Transparency and Program Integrity
The ACA’s Title IV includes the Elder Justice, which was designed to provide federal
resources to prevent, detect, treat, understand, intervene in and, where appropriate,
prosecute elder abuse, neglect and exploitation.17
i.
The Elder Justice Act, ACA § 6703
This provision requires the Secretary of Human Health Services to work in conjunction
with the Departments of Justice and Labor, to award grants and carry out activities that
provide greater protection to individuals seeking care in facilities that provide long-term
services and support. Owners, operators and certain employees are required to report
suspected crimes committed at the facility. Furthermore, facilities must give the state
written notification of an impending closure within 60 days prior to the closure.
The ACA encourages coordination between entities pursuing elder justice efforts and
those involved in related areas that may inform or overlap with elder justice efforts, such
as activities to combat violence against women and child abuse and neglect.18
f.
Title IV: Revenue Provisions
Title IV of the ACA addresses Revenue Provisions and outlines the tax breaks for
families making less than $250,000. In addition, Title IV mandates a federal Pregnancy
Assistance Fund that will assist states to create or maintain reproductive health and
awareness in high schools and higher education institutions.
i.
Support for Pregnant and Parenting Teens and Women, ACA § 10211
The federal government will provide state incentives to adopt policies in support of
pregnant and parenting teens through grants and matching programs. States may use
this funding to enable high schools and institutions of higher education to maintain or
operate pregnant and parenting services. These federal funds may also provide funding
for intervention services, accompaniment and supportive social services or eligible
pregnant women who are victims of domestic violence, sexual violence, sexual assault
or stalking.
g.
Title X: Strengthening Quality, Affordable Healthcare for All Americans
The provisions under Title X of the ACA require public education funding to promote
16
29 U.S.C. § 207(r)(1) (2009).
American Psychological Assocation, The Elder Justice Act, S. 1070/ H.R. 1783 (2010)
18
Elder Justice Act, §2202 (2009).
17
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breast health in young women. Specifically, the provisions will target breast health and
cancer prevention measures in ethnic and cultural minorities.
i.
Support of Young Women Diagnosed with Breast Cancer, ACA § 10413
Amends Title III of the Public Health Service Act. This section provides for a public
education campaign to promote breast health in young women of all racial, ethnic and
cultural backgrounds, raise awareness of specific risk factors in women who may be at
risk for breast cancer based on familial, racial, ethnic and cultural backgrounds such as
Ashkenazi Jewish populations. Moreover, the Director of the Centers for Disease
Control and Prevention must conduct prevention research on breast cancer in younger
women including behavioral, survivorship studies, formative research to assist with the
development of educational messages and information for the public.
The Act also specifies that states must implement policies to support young women
diagnosed with breast cancer. To carry out these policies, $9,000,000 has been allotted
for each of the fiscal years from 2010 through 2014.
4. Conclusion
The ACA takes a multi-pronged approach to promote women’s health. The ACA’s
Medicaid Expansion program and the elimination of denials based on pre-existing
conditions will provide greater coverage to previously uninsured and underinsured
women. As a result, women who could not previously obtain health insurance, now have
access to preventive care and treatment.
In addition, the ACA requires that health insurers include coverage of family planning
services, and fosters collaboration, research and community outreach.
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