Late in the day on Friday, November 21st, 2014 the Department of Health and Human Services issued a proposed rule that outlines ways in which insurance companies can avoid collecting separate payments for the abortion surcharge. “Instead of addressing the significant lack of transparency regarding which plans cover abortion, this new regulation adds to the confusion and deceit,” comments Dana Cody, Life Legal Defense Foundation’s President and Executive Director.
As outlined by researchers at the Family Research Council and the Charlotte Lozier Institute, it remains extremely difficult for consumers to discern which ACA plans cover abortion.
If the Hyde amendment had been applied to the Affordable Care Act, federal subsidies would not flow to insurance plans that include abortion on demand, and taxpayers would not be forced to fund coverage that includes abortion. In order to skirt the Hyde amendment, the ACA contains an accounting gimmick sometimes referred to as the Nelson amendment.
The Nelson amendment requires an abortion surcharge that is to be collected as a separate payment. Statutory language in section 1303 of the ACA requires that issuers of Exchange plans that cover elective abortion “collect from each enrollee in the plan” a “separate payment” for elective abortions, defined as abortions in cases other than rape and incest or to save the life of the mother, and a “separate payment” for all other services.
At the time it was added to the ACA, the separate payment of an abortion surcharge was explained this way by then-Senator Ben Nelson (D-NE):
[T]he insurance company must bill you separately, and you must pay separately from your own personal funds–perhaps a credit card transaction, your separate personal check, or automatic withdrawal from your bank account– for that abortion coverage. Now, let me say that again. You have to write two checks: one for the basic policy and one for the additional coverage for abortion.
Section 1303 even gives the example, “In the case of an enrollee whose premium for coverage under the plan is paid through employee payroll deposit, the separate payments required under this subparagraph shall each be paid by a separate deposit.” This makes clear that the law is specifying payments should be collected separately. While such a scheme would not be allowed under the Hyde amendment, if the payments were actually collected separately it would at least alert consumers that they are paying an abortion surcharge.
This scheme was reiterated in the President’s Executive Order 13535.
In September of 2014, the Government Accountability Office (GAO) issued a report on abortion coverage in plans sold under the Affordable Care Act. According to their findings NONE of the 18 issuers they interviewed had collected a separate payment for the abortion surcharge. The GAO also indicated that out of the 18 issuers interviewed only 1 itemized that “there is a $1 charge for ‘coverage of services for which member subsidies may not be used.’” This confirmed that the abortion surcharge was not being collected as a separate payment.
The proposed rule responds to the GAO report. But, instead of requiring compliance with the separate payment arrangement, the proposed rule construes the language of the ACA as ambiguous, stating that the ACA does “not specify the method an issuer must use to comply with the separate payment requirement.” It then states that issuers may comply with the requirement in several ways including, but not limited to:
- sending the enrollee a single monthly invoice or bill that separately itemizes the premium amount for non-excepted abortion services;
- sending a separate monthly bill for these services; or
- sending the enrollee a notice at or soon after the time of enrollment that the monthly invoice or bill will include a separate charge for such services and specify the charge.
Finally, the rule goes on to explain that the issuer is not required to separately identify the abortion surcharge, and the surcharge can be collected in a single transaction rather than collected separately.
The result of this guidance is to ensure that the abortion surcharge is virtually completely hidden to consumers who in many cases will only receive notice of the surcharge in a stack of paperwork at the time of enrollment. Many consumers will be paying the hidden abortion surcharge without any knowledge that their premium is going to an account to fund abortion.
The proposed rule also underscores that the separate abortion payment (which was wrongly equated to the Hyde amendment by proponents of the ACA) is not being enforced as a separate payment at all. Instead of the protection offered by the Hyde amendment, the ACA simply contains an accounting gimmick that allows taxpayer funding for insurance plans that include abortion on demand.
The proposed regulation is open for comment for 30 days. Stay tuned for more to come on this topic.