Will your health plan pay for an abortion now that the U.S. Supreme Court has struck down Roe vs. Wade?
Even before the June 24 ruling, insurance coverage for abortion varied widely. Today, the issue is even more complex because states set varying rules – about half of them should limit or prohibit abortion in almost all circumstances.
To be clear, however, the question of whether an insurance plan covers abortion is not the same as whether abortion is legal in a state. Coverage issues are more complicated and governed by a wide variety of factors, including the level of access to abortion a state allows.
What is the density of a thicket? Abortion may be covered by a health plan, but if no provider is available, patients cannot access them. However, people with insurance that doesn’t cover abortion can still get one, but only if it’s available in their state or if they can afford to travel and pay out of pocket. There are also a host of unanswered questions about whether states that restrict abortion will have the legal power to target coverage in employer plans.
The issues will likely be before the courts for years to come.
“States will pass laws, there will be disputes, and then it will go to court,” said Erin Fuse Brown, director of the Center for Law, Health & Society at the Georgia State University College of Law. “It might take a while.”
In the meantime, here are the answers to three common questions.
Are health plans — or employers — required to provide coverage for elective abortions?
The simple answer is no.”
“There is no law requiring that a health plan, employer-based or anything else, cover an elective abortion,” Fuse Brown said.
Whether this is the case is more complicated.
Some employment-based health plans cover elective abortions. Patients can search for their plan documents or call their insurer directly to verify.
Coverage is more likely in plans offered by self-insured employers, as these plans are generally exempt from state laws. Self-funded employers, which tend to be the largest, pay their employees’ medical bills out of pocket, although they usually hire third parties, sometimes health insurers, to handle claims and administrative work.
Yet millions of Americans work for smaller employers, who tend to buy plans directly from health insurers, who then pay the medical bills. These plans, called “fully insured,” are subject to state laws, which have long varied regarding abortion coverage.
eleven states prohibit these private schemes to cover abortion in most circumstances, according to the Kaiser Family Foundationalthough some states allow people to purchase an insurance endorsement that would cover the costs.
If you’re not sure what type of health plan you have, ask the administrators.
“There’s no way to tell from the face of your insurance card if you’re fully insured or self-funded,” Fuse Brown said.
For the more than 14 million Americans who buy their coverage through Affordable Care Act markets, their state of residence is critical.
Twenty-six states restrict abortion coverage in ACA plans, while seven states require it, according to KFF. These states are California, Illinois, Maine, Maryland, New York, Oregon, and Washington.
The rules for Medicaid, the federal state health program for low-income people, also vary. Thirty-four states and the District of Columbia follow the Hyde Amendment, which prohibits federal funds from paying for abortions except for rape or incest or to save the life of the mother, although some states allow abortion. coverage for other medically necessary abortions.
For all these reasons, it is not surprising that research published in the journal Health Affairs in April noted that patients paid out of pocket for the majority of abortions (69% in one study). The researchers found that the median cost of a medical abortion was $560, and abortion procedures ranged from a median of $575 in the first trimester to $895 in the second.
What about coverage for pregnancy-related complications that require treatment similar to abortion?
Insurance policies should cover care for essential health services, including medically necessary pregnancy care and abortion when carrying a pregnancy to term would endanger a patient’s life.
Under the Pregnancy Discrimination Act 1978 and other rules, said Fuse Brown, “pregnancy and prenatal care, including high-risk pregnancies, and obstetric care in general should be covered.”
In an ectopic pregnancy – when a fertilized egg implants outside the uterus – the embryo is not viable and the condition is usually life-threatening to the mother without medical treatment. Many other scenarios could come into play, such as if a woman miscarries but not all tissue is expelled, which can lead to a dangerous infection.
Although all state laws that currently restrict abortion include an exception to save the life of the mother, what constitutes a life-threatening scenario is not always clear. This means that doctors in states banning abortion may have to weigh the medical risk to the mother against possible legal ramifications.
“It’s less about coverage and more about whether providers in states that ban abortion are going to provide the care,” said Katie Keith, research faculty member at the Center on Health Insurance Reforms at Georgetown University. “All of these laws are designed to chill the behavior, to make it so unappealing or scary to providers that they prevent them from doing it at all.”
Can residents of states where abortion is illegal receive out-of-state coverage or travel assistance?
Over the past few weeks, many large employers – including Microsoft, Bank of America, Disney and Netflix – have said they will be rolling out programs to help with travel expenses so that workers or other beneficiaries can legally access abortion services in states where it remains legal.
But it’s not as simple as it seems. Employers will need to determine whether workers to be paid back through the health plan or otherwise. Protection of private life, too, can be a problem. Some consultants also said employers will also need to consider other conflicts. If an employer, for example, covers travel costs for abortion procedures but not for an eating disorder clinic, does this violate the Mental Health Parity and Addiction Equity Act? If a plan does not have providers willing or able to perform abortions, is it violating state or federal rules that require reasonable in-network access to physicians and health services?
Lawmakers need to think about these conflicts, said Jessica Waltman, vice president of compliance at benefits company MZQ Consulting. “They could put all employer-sponsored group plans in their state in a very precarious position if this state law prohibits them from complying with federal law,” she said, especially if they restrict access to benefits under the Pregnancy Discrimination Act.
There are other potential conflicts if an employer is in a state that allows abortion but a worker is in a state that restricts it. “If I’m an Oregon-based company, my insurance plan should provide abortion coverage, but what do I do about an employee in Oklahoma? I don’t know the answer” , said Rene Thornedirector of the law firm Jackson Lewis, where she oversees litigation involving self-insured companies.
It’s also unclear whether state laws will target insurers, employers or others who cover abortion services, including travel or televisiting.
Laws that restrict abortion, Thorne wrote in an article on his company’s website, generally apply to the provider of medical care and sometimes to those who “aid or abet” abortion. Some states, including Texas, allow private citizens to sue for $10,000 anyone who performs an illegal abortion or helps someone access one.
Whether these laws are applied to employers or insurers will undoubtedly end up in court.
“We are in uncharted territory here, as we have never been in a situation where plans, as well as their sponsoring employers and those who administer the plans, could face criminal liability in connection with a plan benefit,” said Seth Perettadirector of the Groom Law Group, which advises employers.
The answers won’t come soon, but “there will be so much litigation about it,” Thorne said.
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