For many decades, this country has debated the merits of comprehensive health reform. Many presidents and Congresses have tried, and failed, in their efforts to ensure that virtually all people in this country can get insurance coverage and, ultimately, health care. Certainly, there have been major, but intermediate, steps along the way. In fact, many of the critically important health care laws and programs that we take for granted today were legislative “phoenixes” that arose from the ashes of prior attempts at health care reform. They include Medicare (public health insurance for the elderly and disabled) and Medicaid (joint state- and federally-funded public health insurance for low-income people with disabilities or who are pregnant or parenting).
Given the history of failed attempts at comprehensive health reform, adoption of the legislation in 2010 was far from certain. But repeated reports of its demise proved incorrect, and the Patient Protection and Affordable Care Act (P.L. 111–48, “Affordable Care Act” or “the act”) and the companion Health Care and Education Reconciliation Act (P.L.111–52) were enacted to expand access to health coverage for millions of Americans. This legislation will have a major impact on women in particular, not only because of its general design, but also because of a number of provisions geared specifically to women’s needs.
Women long have faced unique challenges within our health care system. Women face greater affordability barriers in securing access to health care. Their earnings are lower, and their health needs can be greater. Regardless of insurance status, women are more likely than men to report deferring seeing a doctor or a specialist because of cost or to report problems paying a medical bill. Elizabeth M. Patchias and Judy Waxman, the National Women’s Law Center, Women and Health Coverage: The Affordability Gap (2007).
In addition to having affordability challenges, women are more likely to work for employers who do not provide insurance. Moreover, when women have attempted to purchase insurance directly from insurance companies in what is known as the individual market, they experienced harmful and discriminatory insurance practices, exacerbating their difficulties in either affording insurance or securing coverage at any price. For example, insurance companies have considered women who have survived domestic abuse, received a cesarean section, or simply been pregnant as having a pre-existing condition, leading to denial of insurance coverage altogether. In this market, women have difficulty finding any plans that cover maternity care at all and are routinely charged more than men, even with maternity excluded. The National Women’s, Nowhere to Turn: How the Individual Health Insurance Market Fails Women (2008). Specific provisions in the act outlaw many of these practices.
This article reviews the key provisions of the new health reform law and their implications for women’s access to health coverage, both now and into the future.
A Comprehensive Structure to Address Rising Costs and Numbers of Uninsured
The overall design of the new health reform law is based on interdependent elements in order to begin to address the twin challenges presented by our current health care system: rising costs and increasing numbers of uninsured. The act includes reforms to ensure that insurance companies will not exclude coverage of individuals or the conditions for which they need care; financial assistance to ensure that individuals with limited income have access to affordable coverage; requirements for coverage of a broad range of health care services; and new mechanisms to make it easier for uninsured individuals and small employers to shop for, compare, and select the best insurance to meet their needs in new “exchanges.” In return, the law also includes “shared responsibility” provisions. Under an “individual mandate,” unless exempt, individuals must have minimum health insurance coverage or face a financial penalty. And while there is no requirement for employers to offer coverage to their employees, employers must pay a fee if their uninsured employees obtain insurance that is subsidized by public funds through the new exchanges.
The individual mandate goes hand-in-glove with the requirement that insurance companies accept all who apply for coverage, so that healthy people will buy insurance and be part of the pool and not simply wait to buy coverage when they need it. The few states that have tried these types of reforms without the mandate have experienced prohibitively expensive premiums and a lack of insurance providers to choose from. The employer responsibility provision is essentially an anti-free-rider provision, designed to discourage employers from not providing coverage for employees because of an expectation that public subsidies would supplant employer contributions for those employees obtaining coverage through exchanges. In short, these interlocking structural pieces are intended to provide the stability and affordability essential to making the reforms a success. These broad-based structural provisions—such as exchanges, subsidies, and comprehensive coverage requirements that include services women are more likely to need—are of great help to women, who often are the health care purchasers not only for themselves, but for their families.
The End of Sex Discrimination in Health Care
Many find it a great surprise that, prior to the passage of the Affordable Care Act, there was no federal law prohibiting sex discrimination in health care. Under the act, insurance companies, health care providers, and health programs that receive federal financial assistance or are run by the federal government cannot discriminate on the basis of race, national origin, age, disability, or sex. This protection applies immediately, broadly, and nationwide and adopts the enforcement frameworks of Title IX of the Education Amendments of 1972, Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973 (Section 1557 of the Affordable Care Act, P.L. 111–48). The Department of Health and Human Services is charged with issuing regulations that provide guidance on how this overarching provision interacts with other aspects of the health reform law.
The End of Premiums Based on Gender
Under the practice known as “gender rating,” individual women and groups, such as employers with primarily female members, are routinely charged more for health insurance coverage than individual men or groups with primarily male members, even for policies with maternity coverage excluded. In the individual market, forty states allow gender rating. In the group market, gender rating is permitted by fifteen states in the small group market and forty-nine states in large group markets (generally groups of more than fifty members).
National Women’s Law Center research into gender rating in the individual market found that insurers charged dramatically different premiums for women and men—not just across insurers and states, but also among comparable health insurance products with essentially similar plan features. The National Women’s Law Center, Nowhere to Turn: How the Individual Health Insurance Market Fails Women (2008); The National Women’s Law Center, Still Nowhere to Turn: Insurance Companies Treat Women Like a Pre-Existing Condition (2009). For example, among insurance plans offered in Little Rock, Arkansas, with essentially similar features and maternity coverage excluded, one insurer charged twenty-five-year-old women 81 percent more than twenty-five-year-old men, while another insurer charged twenty-five-year-old women 10 percent more than twenty-five-year-old men.
In the group market, employers with predominantly female workforces, such as child care providers, visiting nurse associations, and home care agencies, have faced higher insurance premiums than employers with predominantly male workforces. As a result, it is harder for employers of women to provide, and for their employees to afford, health insurance. Jenny Gold, Fight Erupts over Health Insurance Rates for Businesses with More Women, Kaiser Health News (Oct. 25, 2009). To end this practice, the act expressly prohibits gender rating for individuals and groups up to 100 members by 2014, and the general prohibition on sex discrimination has an even broader and immediate reach, covering all health insurance companies receiving federal funds.
A Ban on Coverage Denials and Premiums Based on Health Status
Insurers routinely charge higher premiums, exclude coverage, or outright reject applicants for insurance because of pre-existing health conditions or health status. Given women’s health needs, they are more likely to be hurt by these insurance practices than men. Even healthy women are not immune from insurance rejection, as documented by insurance industry practices of rejecting women because they previously had received a cesarean section and refused to be sterilized, received in vitro fertilization, or had survived rape or domestic abuse. See, e.g., Denise Grady, After Caesareans, Some See Higher Insurance Cost, NY Times (June 1, 2008); (rejection based on C-section); Danielle Ivory, Rape Victim’s Choice: Risk AIDS or Health Insurance? Huffington Post (Oct. 21, 2009). The new reform law will end insurance companies’ ability to reject applicants for coverage based on health status and exclude coverage of pre-existing health conditions in insurance policies, clearly benefiting all Americans, but especially women.
Ease in Shopping for Insurance
The act creates new health insurance “exchanges” that, when operational by 2014, are intended to facilitate comparison shopping for insurance by individuals and small employers. Plans offered through exchanges must meet certain requirements, such as offering a minimum standard benefit package. In addition, while plans will offer at least the same minimum health care services, four tiers of coverage (bronze, silver, gold, and platinum) will be offered based on an enrollee’s share of the coverage cost. While exchanges will provide unprecedented access and simplicity to shop for insurance coverage, the act includes an unfortunate provision that expressly prohibits undocumented immigrants from purchasing any insurance through exchanges, even if paid for entirely with their own funds.
Financial Assistance to Ensure Access to Affordable Coverage
In 2014, the Affordable Care Act will address in several ways the affordability challenge that women in particular face. For people with the lowest income, eligibility for Medicaid will be expanded to those earning up to 133 percent of the federal poverty level (FPL), thereby enabling more people to qualify. The act, however, did not remove a barrier to Medicaid for immigrants who are in this country legally and who must wait five years before becoming eligible for Medicaid.
For individuals whose earnings are above the Medicaid limits but are less than 400 percent of the FPL (or about $88,000 for a family of four) and who have no offer of affordable health coverage from an employer, advanceable tax credits will be available to subsidize premiums for health insurance purchased through the new health insurance exchanges beginning in 2014. These sliding-scale subsidies will assist with premium expenses that exceed a range of income from 2 to 9.5 percent. Subsidies will also be available to assist in obtaining coverage that reduces out-of-pocket expenses such as copayments and deductibles. And all plans available through exchanges will have caps on out-of-pocket expenses that can be charged to the individual, an especially important affordability protection given that most medical bankruptcies are filed by families who had at least some insurance coverage.
For seniors on Medicare, over time the Affordable Care Act will close the Medicare prescription drug coverage gap known as the “doughnut hole,” under which a senior loses insurance coverage for prescription drugs for costs of more than $2,830 but less than $6,440. Senior women comprise the bulk of individuals affected: In 2007, for example, women comprised 64 percent of the 8 million seniors who fell in the doughnut hole. The Affordable Care Act will phase out the doughnut hole, completely eliminating it by 2020. In 2010, seniors will receive a $250 rebate check once they fall in the doughnut hole, and in 2011, seniors in the doughnut hole will get a 50 percent discount on brand-name drugs.
The Affordable Care Act will also end lifetime and annual benefit limits in insurance policies. Many insurance policies contain a dollar limit on benefits paid either on an annual or lifetime basis. Once the dollar limit is reached, an individual is responsible for the entire cost of their medical claims. The ban on lifetime limits took effect in September 2010, and the ban on annual limits will take effect in 2014. Prior to 2014, plans may only impose “restricted annual limits” that, as defined by the secretary of Health and Human Services, phases out these annual limits for plans purchased or renewed after September 2010, starting with an annual minimum cap of $750,000. Again, because of women’s health care needs, they are at greater risk for reaching an annual or lifetime benefit cap, and therefore this new protection is especially important for them.
Coverage of Specific Health Care Services Important to Women
Too often, women have health insurance that does not cover services they especially need, including not only maternity care, but also, for example, mental health services and prescription drugs. While anti-employment discrimination laws prohibit an employer from providing health insurance that excludes maternity coverage, there is no similar protection for insurance plans offered in the individual market or in nonemployer group plans, and only a handful of states require this coverage. A recent study by the National Women’s Law Center found that just 12 percent of individual health plans offered in state capitals across the country included coverage of comprehensive maternity services. Another 20 percent of plans offered expensive or limited maternity “riders”—separate, supplemental insurance policies available for a premium in addition to the underlying health insurance policy premium. For example, one common rider offered in twenty-six states covered only $2,000 of maternity costs during the first two years of coverage, while the average cost of an uncomplicated delivery in 2007 was $7,500. In all, 59 percent of examined plans neither covered any maternity services nor offered rider coverage. In contrast, the center has yet to find a health insurance policy offered on the individual market that excludes coverage of a basic health care service that only men need.
In 2014, the act will require new health plans sold to individuals and small groups to cover “minimum essential benefits”—ten broad categories of health care services. Coverage requirements include maternity and newborn care, prescription drugs (which we expect to include contraceptive drugs and devices), mental health care, and preventive services. The list of essential health benefits will be further defined by the secretary of Health and Human Services.
Furthermore, the law requires coverage of preventive health care screenings and services recommended by the U.S. Preventive Services Task Force (USPSTF) without cost sharing. Studies have shown that even minimal copayments can deter women from getting preventive screenings such as mammograms. See, e.g., A.N. Trivedi, M.D. et al, Effect of Cost Sharing on Screening Mammography in Medicare Health Plans. N. Engl. J. Med. 358: 375–83 (2008). To ensure that preventive health services that women specifically need are adequately covered, the USPSTF list will be supplemented by preventive services specifically for women to be recommended by the Health Resources and Services Administration.
However, coverage of abortion care is treated differently from any other medical service in a number of ways. Most prominently, pursuant to the “Nelson Amendment,” the act requires that private insurance plans offered through exchanges that cover abortion services must segregate a portion of the private premium contributions from individuals receiving any federal subsidies to ensure that no federal subsidy dollars pay for abortion coverage except in the instance of rape, incest, or the woman’s life being in jeopardy. Questions have been raised regarding how burdensome these segregation requirements will be and whether they will lead insurance companies to drop the abortion coverage they currently provide. The administration also issued an executive order (Executive Order 13535 ) on enforcement of these restrictions.
Additional Provisions Important to Women
Many additional provisions of the new law are important to women and their families. They include, but are certainly not limited to, the following:
• Tax credits for small employers. Women are more likely than men to work for small businesses that do not offer health insurance. Available beginning in 2010, the act provides a tax credit for eligible small employers with up to fifty employees that offer insurance coverage to their employees. The sliding-scale credit is based on the size and average salary of the workforce and is available for up to two years.
• Extending dependent health coverage to age twenty-six. Young women—who are more likely to be uninsured than women in any other age group—will benefit from a new rule that allows young adults to remain on their parents’ health insurance policy as dependents until age twenty-six. This provision took effect in September 2010 for new insurance plans, although many larger insurers and employers announced voluntary compliance in advance of the requirement.
• A new “right to pump” at work. Nursing mothers and their infants will gain from a requirement that employers with more than fifty employees provide a reasonable break time and location to express breast milk. This provision is effective immediately.
• Expanded Medicaid for family planning services. The new law gives states the flexibility they need to adopt a Medicaid family planning expansion or to improve their current program without first having to obtain a federal waiver.
• Direct access to OB/GYNs. Women enrolling in new insurance plans will have direct access to obstetrical and gynecological care, as the new law explicitly prohibits health plans from requiring authorization or prior approval for this type of health care.
• Long-term care insurance. A new national, voluntary employment-based long-term care insurance program (known as “CLASS”) will provide long-term care and will help alleviate burdens on family caregivers, who are most often women.
While space limitations prevent a full discussion of all aspects of the new health reform law, this brief description demonstrates how much women and their families stand to be affected by the new law. Even with its compromises and limitations, millions more will be able to afford coverage, specific targeted provisions will prohibit insurance practices that undermine women’s health, and women in this country will have access to health care that has long been beyond their reach.
Marcia Greenberger is the founder and co-president of the National Women’s Law Center and is a member of the ABA Commission on Diversity. Lisa Codispoti is senior counsel at the National Women’s Law Center’s Health and Reproductive Rights program.