A virtual firestorm has ensued from state reactions to some of the federal government mandates under the health care reforms of 2010, from the Patient Protection and Affordable Care Act, the Public Health Services Act, and the Affordable Health Care Act for America. This article reviews two of these bones of contention, including the consumer protection aspects, which impact the Office of Insurance Commissioners and the reproductive rights provisions.

Consumer Protections under Federal Mandates

The federal government has awarded thirty million dollars in grants to the states to shore up their consumer protection services for health insurance policy holders. Since the insurance commissioners of each state are already charged with this duty, are staffed for it, and are funded by a tax on the insurance premiums for each insurer, I struggle with the necessity of this largesse. The insurance commissioner’s office for each state are very well funded and provide general revenue to each state well beyond their budget requirements. If those states aren’t able to staff appropriately for consumer protections, they should take this up with their state legislatures.

Upon reviewing the mandated consumer protections, they appear to reinforce existing protections in many states, but perhaps the standardization of the process is a good thing overall. Here are the new rules for an insured’s right to appeal a health insurer’s claim decision:

• Allows consumers to appeal when a health plan denies a claim for a covered service or rescinds coverage
• Gives consumers detailed information about the grounds for the denial of claims or coverage
• Requires plans to notify consumers about their right to appeal and instructs them on how to begin the appeals process
• Ensures a full and fair review of the denial
• Provides consumers with an expedited appeals process in urgent cases

These provisions are already spelled out in the Summary Plan Description which employers are required to distribute to medical plan participants as a federal reporting requirement under ERISA health and welfare plans. The new provisions codify what 44 states already have in operation for the outside appeal process. Still, the thirty million dollars to incent compliance seems like overkill for the six states who are not already meeting these recommended standards, which were created by the National Association of Insurance Commissioners. Basically the new rules specify that the patient has a right to an independent review of a rejected claim. According to the Kaiser Foundation’s report on external reviews of insurance claims, the insured won 44% of the time on appeal. [1] Certainly this is enough of an incentive for many patients to pursue a claim review, but one has to wonder, if it is a life saving treatment, the appeals process could still exhaust the patient’s treatment window for optimal efficacy.

Reproductive Rights under Federal Health Care Reforms

I reviewed legislation for all fifty states as of June 2010 and 86% of them had bills that were introduced to modify their compliance with the federal insurance exchanges and other mandates, to be rolled out in 2014. Basically here is what the fuss is about; the federal standards state that Medicaid and the insurance exchange plans will cover reproductive procedures, which of course include abortion and birth control. Since the Hyde Amendment restricts any federal money from paying for abortion, this means the insurance exchanges and Medicaid plans could include abortion coverage but the states or private employers would pay for it. This has raised the hackles of a lot of people, who do not want to be told what to do when they are going to pay the tab. According to a 2003 survey on contraceptive care under insurance programs, 87% of private employers offered coverage for abortion services, which covered approximately 46% of the U.S. population.[2] Since the majority of private employer medical plans already cover abortion and birth control procedures for their female workers, this standard is not new. What is new is the government’s attempt to offer the same reproductive rights to low income women through Medicaid and the subsidies for eligible employers. Many of the states are objecting to the federal requirement that they must offer poor women the opportunity to receive birth control treatment. Why don’t you just keep them barefoot and pregnant? Here are my winners and losers on the reproductive rights bills:

Most female friendly regarding reproductive autonomy

Current Laws

Colorado Law 1021 requires insurers to cover contraceptives if they provide maternity coverage. Wisconsin SA458 improves sex education for youth.

Under Consideration

Illinois- Senate Bill 2482 requires insurance companies who provide prescription drug coverage to include coverage for contraceptives. House Bill 6205 codifies the right to abortion even if Roe-v-Wade is overturned. Bill 6205 also assures the right of Medicaid women to receive contraceptives and abortion as needed. House Bill 6842 blocks some access to reproductive health care under federal health reform stipulations.

Let’s give a shout out to South Dakota for proposing insurance companies cover contraceptives, but also for expanding Medicaid for pregnancy related services. Other states who seek to expand Medicaid for low income women are Alaska and Illinois.

The following states have bills stipulating improvements in sex education, emergency contraceptives upon request (morning after pill), and insurance reimbursement for contraceptives: Pennsylvania, New York, Missouri, Minnesota, California, and Hawaii.

Most paternalistic states regarding female reproductive autonomy

Current Law

Providers Can Decline to Provide Contraceptive Services

The following states have enacted laws which allow health care providers (pharmacists or clinicians) to decline to provide birth control services:  Idaho S1353 enacted 3/29/2010 and Oklahoma S1891 signed 4/2/2010. 

No Abortions under Private Insurance Plans Either

Under current law, the following states do not allow private insurance funding for abortion services; Kentucky, Missouri, Oklahoma, Idaho, and North Dakota.[3] If you are unfortunate enough to live in North Dakota, now is a good time to consider moving over to the healthier and wealthier Minnesota neighbor, though I must confess I am a former Minnesotan.

No Abortions in Health Exchanges

States which have enacted laws that restrict abortion and other contraceptive services under state health insurance exchanges include Arizona and Mississippi.

Arizona- S1305 enacted 4/24/2010, prohibits insurance companies participating in the insurance exchanges from offering abortion and S1001 signed 4/1/2010, blocks portions of the federal health care reforms. If that isn’t charming enough, S1305 also prohibits insurance companies who insure state employees from offering abortion coverage. Guess it is still the wild west in AZ.

 Mississippi- SL3214 was enacted and precludes insurance companies from offering abortion coverage in health insurance exchanges under the 2010 health care reforms.

States Seeking to Limit Birth Control specifically for Low Income Women

Virginia H30 passed 5/17/2010 limiting access to abortion for Medicaid eligible women and

Colorado L1311 prohibits the payment of abortion for Medicaid participants.

Pending Bills Restricting Reproductive Rights[4]

North Carolina currently has a law that allows insurance companies to refuse contraceptive coverage, N.C. 1068 and also restricts access to contraceptives in school health services (let's keep those teen pregnancies coming). The coupe de tat’ Bill 890 makes an unborn child a crime victim separate and apart from the mother, legalizing the fetus status as an individual. North Carolina also introduced a bill on 3/31/2010 requiring all pregnant women to get an ultrasound, regardless of efficacy, to submit to a state lecture on fetal development, and to wait 24 hours before termination. Also a bill was introduced on 4/13/09 to prohibit state employees and teachers from having an abortion paid for by state medical plans. I wonder if the school boards can still fire teachers who become pregnant out of wedlock as well.  Double winner here, ladies, cross your legs in NC.  Bill 1157 would restrict funding for low income women on Medicaid, by not covering birth control services. A bill introduced on 6/17/2010 would block federal health care standards for women.  Finally, Bill 431 would require parental consent in writing before getting an abortion. Let’s see, your parents may have a different religion, different sexual orientation, and you may not even be living with them, but you need their permission? How does this work for foster kids and run-a-ways?

Additional States that seek to limit access to sex education, contraceptives, fair access to birth control for low income women (Medicaid), and to criminalize abortion are:

Alabama, Louisiana, Virginia, Colorado, Nevada, New Mexico.

Does this really matter when the 1977 Hyde Amendment has continually been ratified and every federal budget limits payment for abortion procedures except in the case of rape, incest, or a life threatening situation? The tan-your-Hyde amendment has also been broadened to include no federal reimbursement for abortion for federal employees, women in the military, or for Indian Health Services. The latter is a real confounder; American Indian Tribes are considered sovereign nations yet are conscripted to obtain health care from the occupying nation with opposing values.[5] The 2010 reproductive rights provisions matter because the states can choose different provisions for abortion financing and service availability through the insurance exchanges and Medicaid programs. There is also specific language to protect clinicians who do not want to provide abortions, but no language protecting those who do. This is another example of unequal rights in the land of the not-so-free.  The most onerous task is the mandate to attach a separate premium for abortion costs and to bill it as an addendum to the exchange plans. This seems like a lot of work for the estimated $1 additional cost per eligible woman, but that may be another way for the federal government to discourage abortions. What is next, wearing the letter A on our blouses? The shame attached to a common birth control method and often medically necessary procedure wastes a lot of resources that could be better spent on improving primary care across the board. For example, building a robust sex education program into the school system and providing contraceptive options to the sexually active population.