The Trump administration has released a bevy of proposed and final rules over the last few weeks to try to shape the future of health-care policy as Congress has failed to make significant headway over the last two years and as a Democratic House promises to thwart any Republican efforts in the Senate.
The policies would allow employers to seek religious and moral exemptions from providing contraceptive coverage to employees, penalize immigrants for enrolling in Medicaid and permit states to use federal health insurance subsidy dollars to pay for plans that discriminate based on pre-existing conditions. But all of those rules won’t have the same impact across the country as states — Nevada included — are increasingly taking health-care policy into their own hands in an effort to either help or hinder the administration’s efforts.
The proposed contraception coverage rule, for instance, won’t have as much impact in Nevada because of a law passed during the 2017 legislative session. Another rule that would make it logistically tricky for patients to pay premiums for health insurance plans that include abortion coverage and are offered on the state’s exchange won’t impact the state at all because no exchange plans in Nevada cover the full range of abortion services.
Below, The Nevada Independent takes a deeper dive into how those rules and others will — or won’t — affect health care in Nevada.
Contraceptive coverage rule
The Trump administration released two final rules on Nov. 7 that will allow employers nationwide to exclude contraceptive coverage from health insurance plans offered to employees based on religious or moral grounds. But the rule change, which will take effect Jan. 14, will only affect some health plans in Nevada because of a law passed during the last legislative session codifying the Affordable Care Act’s contraceptive coverage provisions into state law.
Starting in 2012, the Affordable Care Act, or ACA, required that all new private plans cover a wide range of contraceptive services and supplies without any out of pocket costs to patients. The ACA was the first law to establish preventive coverage requirements across all individual, small group, large group, and self-insured plans.
Originally, only “houses of worship” and grandfathered plans were exempt from the contraceptive coverage requirement, though the Obama administration created a so-called accommodation for religious nonprofits and closely held for-profit companies in the wake of the U.S. Supreme Court’s decision in the Hobby Lobby case. The accomodation allowed women to still receive coverage even if their employer objected to providing it based on religious grounds by having insurance plans offer coverage without contraception to employers while offering contraceptive coverage directly to employees and their dependents with no out of pocket costs.
The two new Trump administration rules will allow employers to decline to offer contraceptive coverage to their employees based on religious and moral grounds. (All companies can claim the religious exemption; publicly traded companies cannot claim the moral exemption.)
In a statement accompanying the release of the rules, the Department of Health and Human Services described the rules as “conscience protections” and noted that some contraceptive methods are viewed by some as “abortifacients and sterilization procedures.”
Under the new rules, employers will have three options: Continue to provide contraceptive coverage to employees, claim the accommodation or claim an outright exemption based on religious or moral grounds.
The rules hew closely to interim final rules released by the Trump administration in October 2017 that have not gone into effect after they were stayed by two federal courts. The courts will now have to determine whether the recently released regulations resolve the legal issues with the prior iteration of the rules.
“But given that the final regulations are nearly identical to the interim final regulations, we expect states and students to bring new challenges to the final regulations,” said Laurie Sobel, the Kaiser Family Foundation's associate director for women’s health policy, in a briefing with reporters last week.
In Nevada, the rule changes will apply to self-insured plans, in which the employer assumes the financial risk for providing health-care benefits to employees, because they are regulated under the federal law ERISA (Employee Retirement Income Security Act), which preempts state law. Thirty-one percent of Nevadans are covered under self-insured plans.
Other public and private insurance plans subject to state law will be required to continue to provide contraceptive coverage to employees with no out of pocket costs and with no employer exemptions after the 2017 law codified the Affordable Care Act’s contraceptive coverage requirements into state law. Nevada law does contain a religious exemption for insurers affiliated with religious organizations, though the Division of Insurance was not immediately able to specify whether anyone claims that exemption.
Program integrity rule
Another proposed rule released Nov. 7 is largely technical in nature — relating to state exchanges and subsidy eligibility — but also changes the way that insurers charge for abortion services in qualified health plans under the Affordable Care Act. The rule would require insurers to send two separate bills to patients, one for the cost of the premium to cover abortion services and another to cover all other services, and require patients to send back two separate payments for those premiums.
The proposed rule states that doing so will strengthen the “integrity” of the Affordable Care Act’s subsidy program by ensuring that federal subsidy dollars do not pay for abortion services beyond what is allowed by the Hyde Amendment.
“Strengthening program integrity with respect to subsidy payments in the individual market is a top priority of this Administration,” the rule says.
The rule only applies to states that offer what’s known as non-Hyde abortion coverage on the exchange, a term that draws its name from the federal Hyde Amendment prohibiting the use of federal funds for abortion services unless the pregnancy is a result of rape or incest, or the mother’s life is in danger. Nevada is one of eight states that is allowed to offer non-Hyde abortion coverage under state law but does not, meaning it will have no effect on the state unless that kind of coverage is offered in the future.
“It won’t impact Nevada, not in the immediate future, though that’s not to say we shouldn’t be thoughtful about how that rule is being made,” said Heather Korbulic, the executive director of the state’s health insurance exchange. “... The reason it won’t impact us now is because our carriers on the exchange have not ever and do not currently offer non-Hyde abortion services.”
The rule will, however, immediately affect the four states required to offer non-Hyde abortion coverage and the 12 more states that are allowed to offer it and choose to do so. The rule change is expected to affect 1,111 plans across the country.
Those insurers will be required to bill those they cover at least $1 per month to cover abortion services, a payment that will be required to be made in a separate envelope with separate postage or a separate electronic transaction from the rest of the insurance premium.
Other technical portions of the proposed rule clarify the expectation that exchanges help the federal government fight abuse and fraud, specify that “periodic” checks to determine whether individuals continue to be eligible for subsidies on the exchange should happen twice in a calendar year, allow people to authorize the exchange to terminate their coverage if they are also enrolled in Medicare and streamline annual reporting requirements.
Korbulic said that the periodic eligibility checks could result in an increased cost for the state because of the technology change it would require but that because Nevada has contracted with a vendor to transition to a fully state-run exchange platform, it will be able to share the costs of that change with the other states the vendor serves.
Comments on the proposed rule are due by Jan. 8.
Public charge rule
The Department of Homeland Security proposed a rule on Oct. 10 that would allow immigrants who have received public benefits through Medicaid, the Supplemental Nutrition Assistance Program (SNAP) or several housing programs to be denied legal status. The rule is going through a 60-day comment period that will end on Dec. 10.
The new rule proposes to expand the definition of who the government considers a “public charge,” or someone who is likely to become dependent on the federal government for assistance, for purposes of determining whether an immigrant should be admitted to the U.S., have his or her stay extended or be approved to become a legal permanent resident. (Refugees and asylees cannot be considered a public charge.)
The rule would allow someone to be automatically considered a public charge if he or she receives one or more public benefits and expands the definition of public benefits to include Medicaid, SNAP, the Medicare Part D Low-Income Subsidy and several housing programs in addition to cash assistance programs including Temporary Assistance for Needy Families (TANF) and Supplemental Social Security Income (SSI).
Immigration officials must consider a number of factors in determining whether someone is likely to become a public charge including the individual’s age, health, family status, assets, education, and skills. Officials may also look at whether someone receives assistance through any cash benefit programs as part of examining the totality of his or her circumstances.
The proposed rule does not include subsidies received to purchase insurance through the health insurance marketplace or benefits received through the Children’s Health Insurance Program (CHIP), though the federal government is soliciting public comments on whether CHIP should be considered a public benefit.
The proposal also expands the categories of immigrants subject to the public charge rule from those seeking to legally enter the U.S. or applying for a green card to also those seeking to extend a current visa or change visa types.
The Department of Health and Human Services did not immediately respond to a request about how many non-citizens are enrolled in the state’s Medicaid program.
Subsidies for non-qualified health plans
The Trump administration released guidance on Oct. 22 that would allow states to use Affordable Care Act subsidy dollars to help people purchase plans that don’t meet the minimum essential coverage standards spelled out under the federal health-care law. The federal government is accepting 60 days of public comment on the guidance, but it is already in effect.
Centers for Medicare and Medicaid Services Administrator Seema Verma said in a statement that the new guidance would “empower states” to create additional health-care choices for their residents.
“States know much better than the federal government how their markets work,” Verma said. “With today’s announcement, we are making sure that they have the ability to adopt innovative strategies to reduce costs for Americans, while providing higher quality options.”
The guidance effectively allows states to petition the federal government for permission to use federal dollars to help people pay for plans that aren’t as robust as the qualified health plans sold on the exchange. For instance, states could use the dollars to help people pay for short-term, limited duration plans, which were initially designed as stopgap coverage but expanded by the Trump administration earlier this year, or association health plans, which are offered by chambers of commerce or other business associations but aren’t required to cover all of the ACA’s essential benefits.
In order to use federal subsidies to pay for these plans, states would have to apply to the Centers for Medicare and Medicaid Services for what’s known as a Section 1332 waiver. But Korbulic said it’s unlikely that the state will apply for a waiver to do that because doing so would essentially allow the state to subsidize health insurance plans that can discriminate based on pre-existing conditions.
“I don’t anticipate that’s a move that the Nevada exchange is going to take or Nevada in general is going to take,” Korbulic said. “... It’s changing the definition of what is a comprehensive benefit.”
Incoming Gov. Steve Sisolak, who as the head of the executive branch will responsible for directing the Department of Health and Human Services to pursue any federal waivers, repeatedly expressed his support for protecting people with pre-existing conditions on the campaign trail and hammered his Republican opponent, Attorney General Adam Laxalt, on the issue.
“I will consider signing any piece of legislation that protects Nevadans with pre-existing conditions from discrimination by insurance companies — whether that discrimination is a flat-out refusal to provide coverage or inflated rates for those individuals,” he said in a statement to The Nevada Independent last month.
Health reimbursement arrangements
A proposed rule released on Oct. 23 would allow funds from certain employer health accounts to be used to pay for premiums on the individual health insurance market.
The rule would allow health reimbursement arrangements — the official name for accounts solely funded by employers out of which employees can pay for their health expenses — to be actually integrated with health insurance plans offered on the individual market, though employees who offer or receive an “affordable” individual plan wouldn’t be eligible for subsidies on the exchange. The rule change would also allow employers to offer an “excepted benefits” plan that employers could fund up to $1,800 to pay premiums for certain plans and benefits.
In a statement, Department of Health and Human Services Secretary Alex Azar said that the rule change would expand “affordable healthcare options for the American people.”
“More access to association health plans, short-term insurance, and flexible HRAs complement the work we are doing at HHS to bring down drug prices and lower the cost of healthcare services,” Azar said. “Each of these actions is focused on empowering patients through transparency, choices, and competition.”
Korbulic called the rule a “mixed bag,” saying that it could help people afford premiums on the exchange or other health costs while expressing concerns over the $1,800 ceiling.
“It concerns me that when health care gets more expensive every year or health insurance does that that account will be locked tight for an employee,” she said.
Title X family planning funds
The Trump administration is working on finalizing a rule that would limit the ability of recipients of federal family planning dollars to refer patients to abortion services and remove the requirement that those recipients offer a full range of contraceptive options to patients. The rule was proposed on June 1 and regulations are expected to be finalized within the next couple of months.
The proposed rule will bar recipients of Title X funds from referring patients to abortion services unless the patient has already decided to have an abortion and explicitly requests to be given a referral. In that case only, a doctor would be allowed to provide a woman with a list of providers that offer prenatal care but cannot indicate which provider or providers on the list offers abortion services.
It will also no longer require Title X programs to offer a full range of family planning methods to patients and instead have them discuss a “broad range of family planning methods.” According to the Kaiser Family Foundation, federally qualified health centers backed by Title X dollars are more likely to offer a broad range of contraceptive options — including implants, IUDs, injections and oral contraceptives — than non-Title X grantees.
The proposed rule would apply to dozens of Title X recipients in Nevada including community health nurses and clinics throughout rural Nevada, the Washoe County Health District’s Family Planning Program, Southern Nevada Health District clinics, Douglas County Community Health and Carson City Health and Human Services.
Planned Parenthood does not receive Title X dollars in Nevada as the organization does in other states. But the proposed rule will effectively prevent the organization here and elsewhere from applying for those funds in the future by requiring that Title X funded programs have full physical and financial separation from any abortion-related services — meaning no shared office space, waiting rooms, health records, and staff.
The Department of Health and Human Services, in a statement, said that the proposed rule “seeks to ensure a holistic and health-centered approach; safeguarding the short and long-term family planning needs of more women, men, and adolescents in need of services.”
“It is of utmost importance that individuals in low-income communities receive comprehensive family planning services, and care that promotes the welfare of adults and youth,” the department said. “It is equally important that, as stewards of taxpayer funds, the Department assures that the program operates according to statutory requirements.”
But Elisa Cafferata, a longtime Planned Parenthood lobbyist, said that the proposed rule threatens to tear a hole in Nevada’s safety net by preventing Title X recipients from referring to Planned Parenthood.
“Really a lot of the federally qualified health centers do refer to us because everything we do is reproductive health care,” Cafferata said. “... We have a strong relationship with those other safety net providers and they won’t be able to refer to us.”
The next round of Title X funding applications are due Jan. 15, and the final regulations are anticipated to be released in December or January.