January 8, 2019

Alex M. Azar II, Secretary of Health and Human Services

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS- 9922-P
P.O. Box 8016
Baltimore, MD 21244-8010

Seema Verma, Administrator of the Centers for Medicare & Medicaid Services
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS- 9922-P
P.O. Box 8016
Baltimore, MD 21244-8010

RE: CMS-9922-P, Proposed Rule for Patient Protection and Affordable Care Act, Exchange
Program Integrity

To Secretary Azar and Administrator Verma:

We, the Co-Chairs of the New York State Bipartisan Pro-Choice Legislative Caucus (BPCLC), with
97 legislative members, write in strong opposition of the U.S. Department of Health and Human
Services’ (HHS) Patient Protection and Affordable Care Act; Exchange Program Integrity
proposed rule that was published in the Federal Register on November 9, 2018. In the name of
promoting program integrity, this proposed rule would actually jeopardize the ability of health
insurance companies to provide comprehensive coverage, restrict access to constitutionally-
protected abortion care, and threaten the health and wellbeing of ACA policyholders.
Abortion is one of many health care services that women may require, in certain cases when their
health or lives are at risk. As permitted by law, ACA marketplace plans may provide comprehensive
coverage of reproductive health care services, including birth control, abortion care, prenatal care,
childbirth, and postpartum care. Providers that offer abortion coverage beyond the conditions set
forth in the federal Hyde Amendment1 must follow a set of rules that fall under Section 1303 of the
ACA. Abortion is the only health care service treated in this manner, which only serves to
exacerbate false narratives about abortion care. Nonetheless, health insurance companies that
provide coverage of abortion services have carried out this set of rules without causing undue
1
Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, § 1303 (2010), amended by Health Care and
Education Affordability Act, Pub. L. No 111-152 (2010). See also “Hyde Amendment” Dep’t of Defense and Labor,
Health and Hum. Serv., and Educ. Appropriations Act, 2019, Pub. L. No. 115-245, §§ 506-507.
Page |1 416 Capitol, Albany, NY 12247
burden to policyholders or providers. This proposed rule, on the other hand, would pose excessive
burdens, the implications of which are seriously concerning. HHS seeks to require these health
insurance companies to unnecessarily utilize costly financial, administrative, and material resources
by issuing two premium bills each month. Furthermore, HHS seeks to require policyholders to write
two checks or make two credit card payments each month, which would have to be done on time to
maintain coverage, when the industry standard calls for one monthly premium payment. If
implemented, these requirements could prevent insurance companies from covering abortion care,
and could cause policyholders to lose their coverage. This deleterious proposed rule would be
harmful to policyholders’ health, wellbeing, and economic security, and must be withdrawn.
I. The Proposed Rule Would Impose Unnecessary and Onerous Burdens on Insurers that
Would Force Them to Drop Abortion Coverage in the Marketplace, a Result that
Would Be Contrary to Congressional Intent.
a) The proposed rule would force many health insurers to drop abortion coverage.
The proposed rule would unnecessarily impose excessive requirements on insurers, which could
compel them to drop abortion coverage. Specifically, the proposed rule would require insurers to
allocate significant administrative resources towards issuing and processing payments from multiple
instruments from each subscriber, needlessly raising administrative and personnel costs.2 Issuers
have repeatedly expressed their opposition to such requirements for these reasons. For example,
America’s Health Insurance Plans (AHIP) has stated that it does “not support any requirements to
itemize the cost of, or separately bill for specific benefits that are incorporated in a comprehensive
benefit plan.”3 That is because such requirements go against standard practice in the insurance
industry.
Given the costly and significant administrative burdens that the proposed rule would impose, many
insurance companies could be forced to drop abortion coverage altogether. This outcome, however,
would not be an acceptable nor effective solution to promoting program integrity. It would lead to
increased utilization of emergency room services; escalated health care costs; and lack of access to
safe and legal abortion care, as well as higher rates of maternal morbidity and mortality; infertility;
and poverty and bankruptcy.
b) The proposed rule violates Congressional intent.
Congress passed the Section 1303 special rules after rejecting more extreme alternatives that would
have eliminated abortion coverage in the marketplace.4 Instead, Section 1303 makes clear that
unless a state law says otherwise, insurers offering marketplace coverage may elect whether to
cover abortion. New York State recognizes that access to abortion is important for women’s health
and economic security, and requires state-regulated plans to cover abortion care. Section 1303(c)(1)
of the ACA clearly states that “Nothing in this Act shall be construed to preempt or otherwise have
any effect on State laws regarding the prohibition of (or requirement of) coverage….” (emphasis
added). Implementation of this proposed rule would have a detrimental effect on New York’s
coverage requirement, and therefore, would not be in accordance with ACA law.
2
While the proposed rule contemplates some additional costs for insurers and consumers, HHS has likely grossly
underestimated the burden this rule would impose.
3
America’s Health Insurance Plans (AHIP), Comment Letter on HHS Notice of Benefit and Payment Parameters for
2016 (CMS-9944-P) (Dec. 22, 2014), available at
file:///C:/Users/mdavies/Downloads/AHIP_Comments_on_2016_NBPP_(final)_12-22-14.pdf.
4
See e.g. Huma Khan & Z. Byron Wolf, Senators Defeat Anti-Abortion Amendment in Health Care Bill By 54-45, ABC
News, Dec. 8, 2009, http://abcnews.go.com/Politics/HealthCare/senators-defeat-abortion-amendment-health-care-
bill/story?id=9279079 (last visited Dec. 19, 2018).

Page |2 416 Capitol, Albany, NY 12247

Issuers in New York State have successfully implemented Section 1303’s abortion coverage
requirements in compliance with ACA law, ensuring that New Yorkers have abortion coverage as
part of their comprehensive health plan. The proposed rule would undermine the ability of issuers in
New York State to provide mandated coverage. By challenging New York State’s ability to
determine what constitutes comprehensive insurance coverage, the proposed rule violates principles
of state sovereignty. Furthermore, by forcing insurers to drop coverage, eliminating abortion
coverage in many parts of the country, this proposed rule would violate congressional intent
regarding Section 1303. HHS must rescind the proposed rule.
II. The Proposed Rule Would Impose Significant Costs on Consumers and Lead to
Confusion, which Could Potentially Jeopardize Individual’s Health Coverage.
a) The proposed rule would impose significant costs on consumers.
The proposed rule, if finalized, would impose significant costs on consumers. HHS estimates the
proposed rule would cost consumers more than $30 million, but the actual cost could be much
higher. The Trump-Pence administration failed to account for several costs, including the cost of
consumer learning regarding the proposed rule’s new billing and payment requirements. Moreover,
HHS fails to account for the costs insurers would likely pass onto consumers as a result of
implementing these indefensible requirements. As multiple issuers have indicated, such
requirements are likely to confuse consumers as well as impose unnecessary burdens on qualified
health plan issuers that are likely to be “passed on to beneficiaries in the form of higher plan
premiums.”5 This outcome is intolerable, particularly since there have already been unnecessary
increases in premium rates due to the Trump-Pence administration’s attempts to repeal or dismantle
the ACA. Such an outcome would not only undermine one of the primary goals of the ACA, to
reduce health care coverage costs, but also the Trump-Pence administration’s frequently-repeated
goals of “reduc[ing] administrative burdens” of the ACA and “lowering health care costs for
Americans.”6
b) The proposed rule would cause significant consumer confusion and could cause consumers
to lose their health coverage entirely.
There is also agreement among analysts that this proposed rule would cause confusion and could
put policyholders at risk for losing their health insurance. This assessment is supported by the
findings of a study conducted by Motivate Design, a research consulting firm. Researchers
determined that requiring two separate premium payments from consumers to purchase health
insurance could be confusing and cause consumers to forgo making any payment.7 The proposed
rule fails to address what should happen if a policyholder does not make both premium payments –
the smaller payment for abortion coverage and the larger payment for coverage of other health care
services. Since the payment for abortion coverage is part of the total premium owed, failure to make
both payments properly could be grounds for termination of coverage. This outcome would frustrate
the primary goal of the ACA to make affordable health care coverage widely available.

5
See AHIP, supra note 4; ANTHEM, Comment Letter on HHS Notice of Benefit and Payment Parameters for 2016
(CMS-9944-P) (Dec. 22, 2014), available at
file:///C:/Users/mdavies/Downloads/Anthem_Comment_Letter_2016_NBPP_Proposed_Rule_Final.pdf.
6
DEP’T OF HEALTH AND HUMAN SERV., “Strategic Goal 1: Reform, Strengthen, and Modernize the Nation’s Healthcare
System,” available at https://www.hhs.gov/about/strategic-plan/strategic-goal-1/index.html.
7
Motivate Design, “Usability Study on Nelson Amendment Implementation Report” (on file with Nat’l Women’s Law
Ctr.).
Page |3 416 Capitol, Albany, NY 12247
Enactment of the ACA has led to significant gains in health insurance coverage for many
communities of color. For example, millions of Latinxs have acquired health insurance through the
ACA and depend on it for affordable, quality care. In fact, under the ACA, the uninsured rates for
Latinas of reproductive age fell by 31 percent.8 Similarly, since ACA enrollment began in 2013, the
uninsured rate for Black people has declined by more than 50 percent. More specifically, fifteen
million Black women got coverage through the ACA, and the uninsured rate for Black women fell
by nearly 10 percent.9 Moreover, between 2010 and 2015, the uninsured rate among Asian-
Americans and Pacific Islanders (AAPIs) fell by more than seven percent. Thanks to the ACA, in a
majority of states, more than 80 percent of women of color ages 18-64 now have health insurance;
and 3 states and the District of Columbia have achieved almost universal coverage (95 percent or
greater) among women of color.10 Given that the proposed rule could lead to individuals in these
communities losing coverage, HHS’s proposal is particularly reprehensible and contrary to the
ACA.
c) By eliminating abortion coverage in many parts of the country, the proposed rule would
threaten consumer health, well-being, and economic security.
Even though abortion is a safe and constitutionally-protected health care service in the United
States, federal restrictions on insurance coverage, such as those in this proposed rule, as well as
increasing federal and state attacks on access to abortion care, often create an undue burden on
women who seek abortion services. Regardless of whether someone has private or public health
insurance, everyone should have coverage for a full range of pregnancy-related care, including
abortion. Yet, already, too many are denied abortion coverage based on their income, zip code, or
type of insurance. For many, coverage for abortion care means the difference between getting the
healthcare they need and being denied that care. The impact of such a denial can have long-term,
devastating effects on a woman and her family’s economic future. A study found that a woman who
is denied abortion care is more likely to fall into poverty than a woman who is able to get the care
she needs.11 Additionally, women who are denied access to an abortion have been found to suffer
adverse physical and mental health consequences. For example, according to a longitudinal study,
women denied abortions are more likely to experience eclampsia, death, and other serious medical
complications during the end of pregnancy; remain in relationships where interpersonal violence is
present; and suffer anxiety.12
As discussed above, this proposed rule could result in insurers being forced to drop abortion
coverage in marketplaces across the country due to the significant burdens of complying with the
required procedures. This outcome would be detrimental to all affected women and communities,
but particularly to those that already face barriers to health care. People of color are more likely to
8
Despite these improvements in coverage, Latinas continue to have the highest uninsured rates of any group with 22.4
percent uninsured (compared to 8.0 percent of white peers). Furthermore, Immigrant women of reproductive age who
are non-citizens have more than three times the uninsured rate of U.S.-born women of reproductive age in 2017. “Gains
in Insurance Coverage for Reproductive-Age Women at a Crossroads.” Guttmacher Institute, December 4, 2018,
available at https://www.guttmacher.org/article/2018/12/gains-insurance-coverage-reproductive-age-women-crossroads
9
Id.
10
See Nat’l Women’s Law Ctr., Health Insurance Coverage of Women of Color 18-64, available at https://nwlc-
ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2017/02/WOC-Health-Coverage-by-State-2016.pdf. NWLC
calculations based on American Community Survey 2013 and 2016 1-year estimates using IPUMS-USA, available at
https:// usa.ipums.org/usa/index.shtml. Women of color include all women who self-identified as any race other than
white, non-Hispanic in the ACS.
11
Diana Greene Foster, PhD, Sarah C. M. Roberts, DrPH and Jane Mauldon, PhD. Socioeconomic consequences of
abortion compared to unwanted birth. Abstract from the American Public Health Association’s annual meeting 2012,
available at https://apha.confex.com/apha/140am/webprogram/Paper263858.html.
12
Univ. of California-San Francisco, Turnaway Study, https://www.ansirh.org/research/turnaway-study.

Page |4 416 Capitol, Albany, NY 12247

live in poverty, unable to afford abortion care (or other health care) out-of-pocket. Raising the
necessary funds can delay getting care and increase costs. In a 2014 study, the average cost to
patients for first-trimester abortion care was $461, and anywhere from $860 to $1874 for second-
trimester abortion care.13 Bans on insurance coverage for abortion put people of color and their
families in untenable economic situations. For those who would lose or be denied coverage under
this rule, the cost of ending a pregnancy could force them to choose between paying for rent or
groceries and paying for the care they need.
Abortion is an essential part of reproductive healthcare, and all women should have access to safe,
legal abortion care regardless of where they live, their income level, what kind of insurance they
have, their race or ethnicity, or their sexual orientation. This is particularly important at a time when
we have disturbing racial disparities in health outcomes, including maternal morbidity and
mortality. Restrictions on abortion care, including restrictions on insurance coverage, only serve to
amplify existing health disparities.
III. Conclusion
HHS fails to demonstrate how requiring two monthly premium payments from policy holders would
be beneficial, however, it is evident that this requirement would be harmful for health insurance
providers, women and families, and the healthcare system in New York and other states.
Furthermore, the proposed rule would violate Section 1303(c)(1) of the ACA. As State Legislators,
we work to ensure women’s reproductive rights, affordable healthcare, and the health and wellbeing
of New Yorkers. We cannot condone the dangerous implications of this proposed rule, which could
result in higher health insurance premiums; insurance providers dropping abortion coverage; lack of
access to safe, legal abortion; increased utilization of emergency room services; and surges in health
care expenses, as well as increased rates of poverty and bankruptcy; maternal morbidity and
mortality; and infertility. For all of these reasons, we unequivocally urge HHS to withdraw this
proposed rule in its entirety.
Thank you for the opportunity to provide comments and for your attention to this critical matter.
Please feel free to follow up with the BPCLC through the office of State Senator Liz Krueger at
212-490-9535, or at the address listed below.

Sincerely,

Andrea Stewart Cousins Ellen Jaffee Liz Krueger

NY State Senate Majority Leader NY State Assembly NY State Senate

13
See All Above All, The Impact of Out-of-Pocket Costs on Abortion Care Access, Ibis Reproductive Health (Sept.
2016), https://allaboveall.org/wp/wp-content/ uploads/2016/09/OutOfPocket-Impact.pdf.
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