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. 5 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 6 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 7 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 8 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. 9