The Affordable Care Act still has hurdles before full implementation

The Patient Protection and Affordable Care Act cleared two major hurdles in 2012: the Supreme Court ruling on constitutionality and the reelection of President Barack Obama. However, in 2013 there is a very good chance that Courts will see much more of the health care reform law due to objections regarding the contraception mandate. Despite the bills legal successes in the past, there are (at publication) more than 35 different cases on file against the contraception mandate submitted by individual companies and religious organizations.

The health care law requires that insurance plans cover birth control and other women’s preventive health services. Further, it reduces cost sharing by requiring that these services be provided with no co-payments, deductibles or coinsurance at the start of the next plan year. For proponents of the bill, this means more health plans come under the law’s influence, and that more women will be able to save money when they pick up their birth control. Moreover, preventative services that have “strong scientific evidence” of health benefits such as prenatal care, breastfeeding support, screening for domestic violence, cervical cancer screenings, well-woman visits and mammograms will be covered by health insurance plans.

Proponents of the Affordable Care Act further assert that gender equality in the US means women having complete control over their reproductive lives and that the new coverage guidelines developed by the Institute of Medicine ensures that. However, some organizations do not believe funding such services align with their organizational missions. Most filing amicus briefs are using the Religious Freedom Restoration Act, and it’s precedence of unanimous support by the Supreme Court, to say that the mandate violates religious organizations right to not pay for contraception. These organizations fail to meet the especially narrow exemption rule that group health plans sponsored by certain religious employers are exempt from the requirement if the “religious employer is one that: 1. has the inculcation of religious values as its purpose; 2. primarily employs persons who share its religious tenants; 3. primarily serves persons who share its religious tenants; and 4. is a non-profit organization under Internal Revenue Code section 6033(a)(1) AND section 6033(a)(3)(A)(i) or (iii).

The Religious Freedom Restoration Act, which most are using as the basis for fighting the mandate, requires that the federal “government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person 1. is in furtherance of a compelling governmental interest and 2. is the least restrictive means of furthering that compelling governmental interest.”  Amicus briefs tend to argue that the present bill is not the least restrictive alternative and that the need to “primarily” employ and serve people of one religion is not a proper reflection of hiring practices allowed by organizations. Some additionally argue that being forced to pay for health care services that violate their core mission statements should not be legal.

Those in support of the mandate, like the American Civil Liberties Union (ACLU), believe that in the long game, the mandate will be upheld. The ACLU specifically states in their amicus brief that the plaintiffs are trying to “discriminate against women and deny them benefits because of [the employer’s] religious beliefs.” Other experts have suggested that the state-level Courts might take each case on its own merits leading to many different outcomes, with several being possible cases for the Supreme Court. One thing is certain for 2013 though, no matter where a woman falls in here beliefs about what the health reform bill should and should not require, the Affordable Care Act still has many hurdles before full implementation.

Brad Wright is an Assistant Professor of health management and policy who blogs at Wright on Health.

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  • johnfembup

    Professor, a couple of questions from the class:

    1. You say “The health care law requires that insurance plans cover birth control and other women’s preventive health services.”

    Q – does the law require this, or is that instead written into one of the regulations?

    2. You say ” Further, it reduces cost sharing by requiring that these services be provided with no co-payments, deductibles or coinsurance at the start of the next plan year.”

    Q – Does this reduce cost sharing for both the insured and the payer, or just for the insured? i.e., does this requirement actually reduce overall cost?

    Thank you.

    • Brad

      As is rather frequently the case, the law grants rather broad authority
      to the executive branch to draft regulations. The contraception mandate
      is authorized by the Affordable Care Act, but the specific language
      comes from HHS regulations. As for the cost-sharing aspect, it doesn’t
      really make sense to frame this as an issue of overall cost or
      cost-sharing for the insured and the payer. Cost-sharing is, by
      definition, the portion of costs that an insured person must pay out of
      their own pocket, and is designed to limit the effects of moral hazard.
      Thus, it is limited to the insured’s portion of the premium,
      deductibles, co-payments, and co-insurance. The claim is not that this
      reduces overall costs, but that eliminating cost-sharing increases
      access to contraception. The best evidence of which remains the RAND
      Health Insurance Experiment of the 1970s.

      • johnfembup

        So, your response is that the law does not require coverage of contraceptives; it rather permits it, and the regulators then step in to write the specific requirements.

        Your view of a “government of laws” certainly differs from mine.

        Then you seem to dismiss the consideration of overall cost. I believe that is a grievous error.

        In the first place, contraceptive care is already easily available for minimal personal cost, as the Sandra Fluke affair made clear. If that were not enough, Planned Parenthood already dispenses contraceptives like candy. It’s hard to conclude that access to contraceptives is a serious problem.

        Besides which, PPACA is premised on its ability to reduce overall spending for medical care in the US. You mention the RAND study of 1970′s – according to that study, reducing cost sharing increases utilization and thus cost. So I suggest you have it nearly backwards. PPACA is likely induce higher utilization and higher overall cost. The government must then either reduce benefits or increase taxes or both.

        Which will it be? I’m betting both.

        • Brad

          I’m not ignoring costs, but they are not the focus of this post. Nor is it correct to assert that the ACA is entirely predicated on cost reduction. It has demonstration projects designed to test cost containment strategies, but it is first and foremost about covering folks, and fostering personal responsibility via the mandate. Your dichotomy is a false one so long as there remain such enormous inefficiencies in the system, and every other industrialized nation in the world attests to the fact that such waste exists in America.

          • johnfembup

            “Nor is it correct to assert that the ACA is entirely predicated on cost reduction.”

            Of course it would be wrong to claim PPACA is entirely predicated on anything, especially because this law had to be passed before anyone could, you know, find out what is in it. Besides, that’s not what I said – and I set up no “dichotomy.”

            But the fact remains PPACA was sold to the public as a means to insure everyone and at the same time reduce costs.

            In selling his plan this way, Obama led the public to believe that everyone could be covered; the CBO and others currently estimate the uninsured may reduce by half. That’s a good result. It’s not the result that Obama used to sell PPACA.

            As to cost, Obama claimed that his plan would reduce insurance costs by $2500 a year for the average family. Obama also claimed he would not sign legislation that added one dime to the nation’s deficit. These claims were fundamental to getting the nation to support PPACA. Obama didn’t deliver on these claims either.

            “fostering personal responsibility via the mandate”

            Your view of “personal responsibility” certainly differs from mine.

  • josh davis

    I went to get birth control (the pill) today and was charged a payment, the HR department told me that did they did not have to provide it free of charge. Is this true? And if not, who do I contact?

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