Health plans

Tracking Issue for Post-Dobbs Health Plans – More Questions than Answers

In a year already marked by overwhelming legislative and regulatory changes, group health insurance plans must now address another issue: abortion coverage following the recent US Supreme Court decision united in Dobbs v. Jackson Women’s Health Org. The Court annulled Roe vs. Wadeeliminating the constitutional right to abortion and leaving states free to regulate the procedure — and health plan proponents are wondering what to do next.

The Dobbs decision — and the actions of state legislatures in response — will have significant implications for benefit plan sponsors. From the more obvious questions, such as whether and how group health insurance plans can cover abortion services, to the more opaque, such as whether employers can provide exclusive reimbursements for abortion-related travel expenses and whether participants can be reimbursed for these expenses through Health Reimbursement Arrangements (HRAs), there are more questions at this point than answers. In this preliminary articleDobbs blog, we’ll try to help plan sponsors spot some of the biggest issues.

Two factors that will greatly affect a plan sponsor’s options are whether the plan is subject to ERISA and whether it is self-funded or fully insured.

Plan design and ERISA preemption

Sponsors of group health insurance plans, including employers and trustees of multi-employer plans, should immediately review their plan designs to determine what actions, if any, will be required or recommended afterDobbs.

State laws that prohibit abortions and state insurance laws that restrict abortion coverage will effectively prohibit fully insured group health plans from providing such coverage, even if those plans are subject to ERISA. That’s because state insurance laws are generally “saved” — or exempted — from ERISA’s preemption over state laws.

Self-funded health plans governed by ERISA have historically enjoyed greater flexibility in plan design and choice of benefits, largely due to ERISA’s preemption over state laws. In the wake of the Dobbs decision, proponents of self-funded ERISA plans that cover abortion services are likely to argue that ERISA precedes (or supersedes) any state-imposed restrictions on abortion. Arguably, any restriction of state abortion law relates directly to issues of plan administration and would therefore be preempted.

However, while the scope of ERISA’s preemption over inconsistent state laws is broad, it is not without limits. ERISA does not preempt generally applicable criminal laws. Challenges to the ERISA preemption argument are likely to rely on this exception, as well as state police powers specifically reserved by the Tenth Amendment to the U.S. Constitution. In addition, courts may be forced to rule on the extraterritorial application of a state’s laws if a state seeks to prohibit a plan from providing abortion coverage for services performed in another state where abortion remains legal. Whether and how ERISA’s preemption clause will apply to state abortion laws remains unclear at this time and is likely to be highly contentious.

Self-funded health plans that are sponsored by government entities are not governed by ERISA and therefore cannot rely on the ERISA preemption argument. These plans may or may not be governed by state laws, including laws governing abortions.

Open issues for plan sponsors after Dobbs

Plan sponsors should first review whether their plans currently cover, exclude, or limit abortion and determine if plan terms need to be clarified. Generally, if a plan says nothing about coverage for a service or condition, coverage for that service or condition is implied, as long as it is medically necessary. Plan sponsors that do not explicitly address coverage for abortion-related services might consider modifying their plans to exclude or clearly provide such coverage.

If the plan’s abortion coverage is unclear, sponsors should amend the plan to clarify it. For example, if the plan limits abortion coverage to situations in which the mother’s life is at risk, plan sponsors should consider clearly defining those conditions. The plan could also be revised to clarify what constitutes a medical emergency requiring an abortion, the impact of mental health conditions on abortion coverage, and how medical necessity is determined for such coverage.

Sponsors wishing to maintain or expand abortion coverage can do so in several ways, but should be aware of the many considerations involved.

Access to abortion

For plans offering coverage in states where abortion remains legal and unrestricted, the most immediate issue will likely be access. Providers in these states expect to be inundated with local patients and patients from states where abortion is restricted or prohibited. Sponsors can work with their network and claims administrators to determine whether expanding the network or including non-network provider services can improve access.

Concierge

Concierge services, particularly for plans administered in states where abortion is prohibited, may simply offer information to participants asking where they can legally access an abortion, plan benefits available for such procedures, and availability. providers to perform abortions.

Travel benefits

A growing number of employers are offering travel and lodging benefits to employees who request abortion services when such services are prohibited in the state of employment. Section 213(d) of the Internal Revenue Code allows plans to reimburse travel and lodging expenses (within certain parameters) as “medical care”. When implementing travel benefits, plan sponsors should consider reasonable dollar and mileage limits and ensure that they do not conflict with Code rules for such reimbursements.

HRA

Sponsors who wish to add an HRA to their benefit offerings should be aware of the Code’s rules governing the types of medical expenses that may be reimbursed. For insured plans, adding an HRA can provide some level of coverage for abortion-related services when the insurance policy itself does not. In order to maintain compliance with the Affordable Care Act (ACA), an HRA must generally be integrated with another group health plan that provides minimum value coverage (such as the company’s employer-sponsored medical plan). employee or spouse).

HIPAA

Certainly, requesting or receiving abortion-related services from a plan, including travel expenses and other reimbursements, is protected health information. Plans should keep in mind that the strict privacy requirements of HIPAA will apply to this information.

Civil or criminal liability

State laws that purport to impose civil or criminal liability on parties who “aid and abet” abortion providers may raise liability issues for sponsors and trustees of group health plans that cover abortion-related services. abortion. It is unclear whether these laws are preempted by ERISA (for plans subject to ERISA), or whether paying benefits or resolving claims and appeals under a plan constitutes a “aiding and abetting” within the meaning of this provision. statutes. We expect claim payers and third-party administrators to seek compensation from plan sponsors whose plans provide some level of abortion coverage.

Contraceptive coverage under the Affordable Care Act

Sponsors also cannot ignore the effect of Dobbs on coverage for contraception and medical abortions. The ACA’s preventive services mandate requires free contraceptive coverage. This mandate remains intact after Dobbsas recently reaffirmed by a Joint letter of June 27 from the Ministries of Labour, Treasury, and Health and Human Services. Contraception methods covered include hormone therapy (such as the birth control pill), sterilization (tubal ligation for women), and emergency contraception (such as Plan B). However, the contraceptive coverage mandate does not include abortifacient drugs. State efforts to restrict access to FDA-approved drugs such as these involve other issues, however, including provider licensure and state telehealth rules, as well as the recent assertion of the United States Attorney General that federal law would override state bans on these drugs.

Although it will take years, if not decades, to identify and resolve the myriad questions that will arise as a result of Dobbs, group health plan sponsors must be ready to act immediately to address the most obvious and pressing issues. At this point, however, there are simply more questions than answers. We invite you to join Spencer Fane partners Greg Ash and Julia Vander Weele on August 4th for an in-depth 90-minute webinar in which Greg and Julia will provide more advice on this topic.

Key takeaways for plan sponsors

  • Know your plan. Review your current plan design and consider changes to clarify abortion coverage.
  • Understand the state’s legal environment. Review the laws of the state in which the plan is domiciled and in which treatments are likely to be administered.
  • Inform your employees. Inform participants whether the plan covers or excludes abortion and how to get more information.
  • Follow developments. Going forward, the battle over abortion rights and services will likely include group health plans.