Attorney General Becerra: Separate Abortion Billing Rule Threatens Health Coverage During the Pandemic, A 60-Day Delay Won’t Fix What’s Broken

SACRAMENTO – California Attorney General Xavier Becerra and New York Attorney General Letitia James today led a coalition of nine attorneys general in filing a comment letter opposing the U.S. Department of Health and Human Services' (HHS) new interim final rule relating to their unlawful 2019 rule for health Exchanges under Section 1303 of the Affordable Care Act (ACA). The Separate Abortion Billing Rule requires consumers to make two separate payments for healthcare – one for their insurance premium and a separate one-dollar payment for abortion coverage – or risk losing their coverage altogether. The interim final rule would delay implementation of the new Separate Abortion Billing Rule by 60 days – despite states and the healthcare industry asking for more time or to halt the rule altogether. The coalition argues that the final rule is unlawful, would harm states, insurers, and consumers seeking reliable health coverage during the COVID-19 pandemic, and highlights that a 60-day delay is not sufficient remedy to the problems posed by the final rule.

 “The Trump Administration’s unlawful Separate Abortion Billing Rule puts Americans’ healthcare at risk in the midst of a pandemic, just as they need it most. A 60-day delay won’t fix what’s broken,” said Attorney General Becerra. “Issuing a rule halfway through the plan year that burdens our health system and risks consumers’ healthcare is simply irresponsible. It’s our duty to protect Americans’ healthcare, including women’s access to safe and legal abortion care.”

On December 27, 2019, HHS issued a final rule requiring qualified health plans participating in health Exchanges to send and collect separate bills—one for a health insurance premium and one of at least one dollar for abortion coverage. If a consumer misses the one-dollar payment, they could lose all coverage. This onerous and confusing requirement threatens women’s access to abortion and puts health insurance coverage at risk for millions of individuals. HHS itself has conceded that requiring separate bills and separate payments will inevitably lead to confusion, putting more than 1.4 million enrollees in California alone at risk of losing coverage if they inadvertently fail to make full premium payments on time. Furthermore, the rule places unreasonable burdens on health insurers by requiring them to make onerous administrative changes in the middle of the plan year, instead of the end of the plan year, when all other benefit and rate changes are made. 

On January 30, 2020, Attorneys General Becerra and James filed a lawsuit contesting the final rule. Following the onset of the COVID-19 pandemic, HHS issued an interim final rule, delaying enforcement of the Separate Abortion Billing Rule by 60 days, purportedly to allow insurers time to address immediate challenges posed by the pandemic.

In the comment letter, the coalition argues that the interim final rule:

• Forces states and insurers to make onerous changes in the middle of the plan year, because the 60-day delay is insufficient;
• Imposes significant burdens given that insurers and state agencies must work through the summer months to establish and adjust new premium rates for the following open enrollment period;
• Burdens states, state agencies, and insurers and hampers their efforts to respond to the COVID-19 pandemic; and
• Endangers the gains recently made through several Exchanges’ special enrollment periods.

Attorney General Becerra was joined in filing today’s comment letter by the attorneys general of New York, Colorado, Maine, Maryland, Oregon, Vermont, Washington, and the District of Columbia. 

A copy of the comment letter is available here. More information on the Attorney General's ongoing lawsuit challenging the final rule is available here.