The Health Care Law’s  “Special  Rules”  on  Abortion Most insurance plans already cover abortion, appropriately recognizing that abortion is part of comprehensive health care.1 The Affordable Care Act allows insurance plans participating in state exchanges to continue this coverage. At the same time, the Act contains  “special  rules”  on   abortion.2 The  “special  rules”  were  included  to  ensure  that  federal dollars – in the form of tax credits and cost sharing reduction payments – are not used to pay for abortion services, except in cases  of  rape,  incest,  or  when  the  women’s  life  is  endangered.     These  “special  rules” are not unduly burdensome or a reason for issuers to drop coverage of abortion that women already have. In fact, insurance plans in the Marketplaces that are covering abortion are doing so in accordance with these rules. The  “Special  Rules”  on  Abortion The  “special  rules”  on abortion in the Affordable Care Act make it clear that – absent a state law prohibiting abortion coverage in the exchange – qualified health plans (QHPs) decide for themselves whether to cover abortion,3 just as insurance plans always have. These Rules Create an Accounting Mechanism and Are Neither A Rider nor A Surcharge When a QHP provides coverage of abortion in cases beyond rape, incest, and threats to the woman’s  life,  there  are  certain  administrative  requirements  that  QHPs  must  meet  to ensure that federal financial assistance does not pay for those abortion services.4 These administrative requirements do not involve providing abortion coverage through a rider or requiring an enrollee to pay an extra fee or surcharge. The plans must use accounting mechanisms to ensure that federal financial assistance does not pay for abortion services, except in cases of rape, incest, or when  the  woman’s  life  is  endangered. The Accounting Mechanism Ensures that Federal Dollars Do Not Pay for Abortion When  a  QHP  receives  the  enrollee’s  premium  and  the  federal financial assistance, the QHP must segregate at least $1  of  the  enrollee’s  premium from the remainder of the funds.5 That money must go into an allocation account that can only be used to pay for abortion services in cases beyond  life  endangerment,  rape,  and  incest.  The  rest  of  the  individual’s  premium,  as  well  as  any   1 Guttmacher Institute, Memo on Private Insurance Coverage of Abortion (Jan. 19, 2011), http://www.guttmacher.org/media/inthenews/2011/01/19/index.html. 2 Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, § 1303 (2010) (to be codified at 42 U.S.C. 18023). In March 2012, the Department of Health and Human Services (HHS) issued the final rule on state-based insurance exchanges, which  included  the  “special  rules”  on  abortion  as  delineated  in  the  ACA.    45  C.F.R.  156.280  (2013). Executive Order 13535 directed the Office of Management and Budget and HHS to develop a model set of segregation guidelines for state health insurance  commissioners  to  use  when  determining  whether  qualified  health  plans  are  complying  with  the  “special  rules.”  Exec.   Order No. 13,535, 75 Fed. Reg. 15,599 (March 29, 2010). The guidelines issued in response provide information about the contents of the segregation plan each qualified health plan must submit to the state health insurance commissioner, assurance statements from issuers, and periodic audits of qualified health plans. Office of Mgmt. and Budget  and  Dep’t  of  Health  and   Human Servs., Pre-Regulatory Model Guidelines Under Section 1303 of the Affordable Care Act (Sept. 20, 2010), available at http://www.whitehouse.gov/sites/default/files/omb/assets/financial_pdf/segregation_2010-09-20.pdf. 3 § 1303(b)(1)(A)(ii). 4 § 1303(b)(1)(B)(i). 5 § 1303(b)(2). federal financial assistance, goes into a different allocation account and can be used to pay for abortion services in cases of life endangerment, rape, and incest and other health care services. (An illustration of this process appears at the end of this document.) The ACA Requires Disclosure of Abortion Coverage in Some Plan Documents The Affordable Care Act requires QHPs to disclose when they provide coverage of abortion. QHPs providing abortion coverage beyond  the  cases  of  rape,  incest,  and  threats  to  the  woman’s   life notify enrollees of the coverage in the Summary of Benefits and Coverage.6 Enforcement of The Special Rule for Abortion State  health  insurance  commissioners  are  responsible  for  oversight  of  QHPs’  compliance  with   the  “special  rules.”7 Illustration  of  Compliance  with  “Special  Rules” 6 7 §1303(b)(3)(A). § 1303(b)(2)(E)(i). National  Women’s  Law  Center- October 2013, Page 2