Federal agencies urged to address uncertainty from Roe v. Wade

The recent U.S. Supreme Court decision overturning Roe v. Wade creates uncertainty for employer health plan sponsors, including potential civil and criminal legal risks over reproductive health care coverage and related programs. Business Group on Health outlines its concerns in a letter to the Departments of Treasury, Labor, as well as Health and Human Services.

“Regardless of one’s position on the merits and prudence of the decision, it will be undeniably disruptive to Americans in many facets of their lives,” says Ellen Kelsay, the organization’s president and CEO. “Further, the decision has introduced an unprecedented level of uncertainty for American companies that provide health benefits for over 170 million employees and family members.

“For employers that sponsor ERISA health benefit plans, the policy underpinning such offerings hinges on certainty and uniformity for employers, employees and families regarding the benefits provided. For at least the short term, it is inarguable that the requisite certainty and uniformity will be disrupted as employer plan sponsors will have to navigate the evolving legal requirements associated with abortion, fertility and other reproductive health coverages.”

The letter encouraged the departments to take four specific actions:

• Affirmatively support and defend ERISA preemption to the greatest degree possible as it pertains to state civil and criminal action against plans, plan sponsors, settlors, fiduciaries, service providers and their personnel.
• Provide guidance to update HIPAA’s privacy protections to ensure that covered entities are able to protect private health information regarding medical procedures, related benefits or other information when lawfully undertaken in the jurisdiction where performed, or as otherwise appropriate under applicable law.
• Issue Treasury/IRS guidance assuring plan sponsors that travel benefits meeting IRC 213(d) requirements (including any future amendments) are categorically “not significant” medical benefits, regardless of group health plan status, and thus will not disqualify an otherwise qualified individual from contributing to a health savings account.
• Exercise enforcement discretion regarding Mental Health Parity and Addiction Equity Act assessments to accommodate uncertainties and volatility regarding abortion, fertility and other reproductive health benefits, and any medical travel benefits.

Learn more: Why fertility benefits are about more than financial support

“Facing a potential shortage of providers and/or the specter of state criminal prosecution or other enforcement, plans are or may be faced with abandoning desired programs,” the letter concludes. “We expect that the volatility in this area will subside over time but urge the departments to act now to assure plans that they can make desired changes without fear of negative federal consequences or undesirable and misleading publicity under otherwise applicable reporting requirements.”