BILL ANALYSIS Ó
AB 2081
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Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON HEALTH
Jim Wood, Chair
AB 2081
(Grove) - As Amended March 18, 2016
SUBJECT: Health care service plans: abortion coverage.
SUMMARY: Provides that a health care service plan (health plan)
is not required to include abortion as a covered benefit, and
would prohibit the Director of the Department of Managed Health
Care (DMHC) from denying, suspending, or revoking a plan's
license, or otherwise sanction or discriminate against a health
plan, if the health plan excludes coverage for abortions.
EXISTING LAW:
1)Regulates health plans under the Knox-Keene Health Care
Service Plan Act (Knox-Keene) of 1975 through the DMHC.
2)Requires a health plan contract to provide to enrollees "basic
health care services" defined as:
a) Physician services;
b) Hospital inpatient services and ambulatory care
services;
c) Diagnostic laboratory and diagnostic and therapeutic
radiologic services;
d) Home health services;
e) Preventive health services;
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f) Emergency health care services, as specified; and,
g) Hospice care.
3)Allows the Director of DMHC to, for good cause, by rule or
order, exempt a plan contract or any class of plan contracts
from the requirement to provide basic health care service
either unconditionally, upon specified terms and conditions,
or for specified periods of time, if the Director finds the
action to be in the public interest and not detrimental to the
protection of enrollees, and that the regulation of the plan
contracts is not essential to the purposes of Knox-Keene.
4)Establishes the California Reproductive Privacy Act, which
provides that the state shall not deny or interfere with a
women's right to choose or obtain an abortion prior to
viability of the fetus, or when the abortion is necessary to
protect the life or health of the woman, and makes legislative
findings and declarations that every individual possesses a
fundamental right of privacy with respect to personal
reproductive decisions, and that every woman has the
fundamental right to choose to bear a child or to choose and
to obtain an abortion, as specified.
5)Mandates the 10 federally required essential health benefits
(EHBs) in the individual and small group market and
establishes the Kaiser Small Group health plan as California's
EHB benchmark plan.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, DMHC changed
its policy and threatened to punish any insurance company who
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sold policies without elective abortion coverage when DMHC
notified all private health plans in California that all
health care plans issued in the state must immediately cover
elective abortions and DMHC interpreted "basic health care
services" to require coverage for all abortions. The author
contends that it did this despite the fact that nothing in
California law or in the state constitution requires private
health plans to cover abortion, and despite the federal law
which forbids this type of discrimination. The author argues
that the state of California is at risk for losing billions of
dollars in federal funding for violating federal law.
The author indicates that seven California churches, with the
help of the Life Legal Defense Foundation and Alliance
Defending Freedom have filed a complaint with the U.S.
Department of Health and Human Services Office for Civil
Rights (HHS OCR) asking the agency to enforce federal law,
which outlaws discrimination against health insurance plans
that do not include abortion.
The author states that ironically, California exempts certain
religious employers, allowing them to not include
contraceptive coverage in their health-care plans, but this
exemption does not exist for abortions. According to DMHC, it
has approved a religious employer exemption with respect to
abortion coverage for employers that meet the Act's definition
of religious employer.
2)BACKGROUND.
a) Knox-Keene. Knox-Keene requires coverage of basic
health care services, which includes physician services,
inpatient hospital services, ambulatory care services,
outpatient hospital services, and preventive services.
Health plans are required to provide these basic health
care services to its enrollees when medically necessary.
Existing regulations further define basic health care
services, and specify that they must include a variety of
family planning services.
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b) Recent DMHC actions. In August 2014, DMHC sent letters
to seven health plans it determined had language in their
contracts that may discriminate against women by limiting
or excluding coverage for termination of pregnancies. The
letters were issued after it became known that two
California universities limited employee coverage for
abortions only to those necessary to protect a woman's
health.
In the letter, DMHC stated that it had erroneously approved
or failed to object to the discriminatory language in the
plans' evidence of coverage filings. DMHC reminded plans
that Knox-Keene "requires the provision of basic health
care services, and that the California Constitution
prohibits health plans from discriminating against women
who choose to terminate a pregnancy." DMHC also stated,
"?all health plans must treat maternity services and legal
abortion neutrally." Additionally, DMHC stated that
exclusions and limitations on abortion coverage are
incompatible with the California Reproductive Privacy Act
and multiple court rulings that have "unambiguously
established under the California Constitution that every
pregnant woman has the fundamental right to choose to
either bear a child or to have a legal abortion." DMHC
also clarified that a plan is not required to cover
abortions that would be considered unlawful.
DMHC directed the health plans to review all current plan
documents to ensure they are compliant with Knox-Keene with
regard to legal abortion, including any plan documents
previously approved or not rejected by the department.
DMHC also required plans to amend health plan documents to
remove discriminatory coverage exclusions and limitations,
including but not limited to, any exclusion of coverage for
"voluntary" or "elective" abortions and/or any limitation
of coverage to only "therapeutic" or "medically necessary"
abortions.
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c) Relevant case law. Over four different terms, beginning
in 1978, California's Budget Act changed provisions in the
California Constitution that limited Medi-Cal coverage for
abortion, yet still covered the medical expenses of
indigent women who carried their child to term. The
Committee to Defend Reproductive Rights filed suit in 1978,
arguing that the denial of this coverage was a violation of
California's constitutional right to privacy. The Superior
Court agreed, ruling in Committee to Defend Reproductive
Rights v. Myers, 29 Cal.3d 252 (1981) (CDRR v. Myers), "By
virtue of the explicit protection afforded an individual's
inalienable right of privacy by Article I, Section 1 of the
California Constitution?the decision whether to bear a
child or to have an abortion is so private and so intimate
that each woman in this state - rich or poor - is
guaranteed the constitutional right to make that decision
as an individual, uncoerced by governmental intrusion."
The court held that the abortion funding restrictions in
the Medi-Cal program, which resulted in the funding of
childbirth but not abortion, infringed the woman's exercise
of her right of procreative choice. There is nothing to
suggest that the state's regulatory authority for health
plans is not subject to the same constitutional principle
as its funding authority.
d) Federal law. The Federal Hyde Amendment (Hyde
Amendment) is a legislative provision barring the use of
certain federal funds to pay for abortions except if a
pregnancy arises from incest or rape. The Hyde Amendment
applies only to funds allocated by the annual
appropriations bill for the U.S. Department of Health and
Human Services and primarily affects Medicaid. The cutoff
of federal Medicaid funds prompted some states to provide
public funding for abortion services from their own
budgets, without federal funding. Over time the number of
states doing so has gradually expanded, either through
legislation or consequent to judicial rulings mandating
equal access to health care for low-income women. As of
2007, 17 of the 50 states provide such funding; four of
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these states provide such funds voluntarily and 13 of these
states do so pursuant to a court order. California is one
of the 13 states that does so by court order, per CDRR v.
Myers.
e) Federal investigation. U.S. Department of Health and
Human Services Office for Civil Rights (HHS OCR) opened an
investigation into DMHC's 2014 decision to require all
health plans to cover abortions. HHS OCR is responsible
for enforcing the Weldon Amendment. The Weldon Amendment
allows the government to withhold federal funding from any
federal, state, or local entities that discriminate against
doctors, hospitals or health plans that choose not to offer
or cover abortion services. At a congressional hearing in
February 2016, the HHS Secretary indicated that the HHS
OCR's investigation is not yet complete.
3)SUPPORT. The California Catholic Conference, Inc. (CCI)
states that proponents of abortion are trying to force their
view on Catholic Institutions and other faith-based healthcare
organizations. CCI contends that the federal law does not
enact such a rule and mandates at least one plan be available
in each state that excludes most abortion coverage.
4)OPPOSITION. The National Health Law Program states that this
bill would violate California constitutional law, statutory
law, jurisprudence, and would deprive women of access to the
reproductive health care they are entitled to seek. NARAL
Pro-Choice California contends that insurance plans should
treat termination of pregnancy and childbirth neutrally and
offer full coverage of comprehensive reproductive health care
services. Planned Parenthood states that if the state
required health plans to cover childbirth, but not abortion,
it would weight a woman's individual decision about how to
treat her pregnancy and would interfere with the exercise of
her right to obtain an abortion. The American Civil Liberties
Union of California (ACLU) writes that pregnancy is a health
condition requiring medical care and abortion, like
childbirth, is an individual decision that a woman may make
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about how to treat her pregnancy. Additionally, ACLU states
that the concept that only certain abortions are medically
necessary is a relic of criminal abortion law that was
outdated when the Knox-Keene was passed in the 1970s and is in
conflict with current California constitutional and statutory
law.
5)PREVIOUS LEGISLATION.
a) AB 2336 (Grove) of 2014, would have prohibited a person
from performing, or attempting to perform an abortion if
they know the pregnant woman is seeking the abortion on
account of the gender of the unborn child. AB 2336 failed
passage in the Assembly Health Committee.
b) ACA 5 (Grove), of 2014, would have prohibited, except in
the case of an emergency, a physician from performing an
abortion on an unemancipated minor unless the physician has
notified one of her parents, or a judge has granted the
unemancipated minor a waiver of the notification
requirement. ACA 5 failed passage in the Assembly Health
Committee.
c) AB 1254 (Grove), of 2015, would have provided that a
health plan is not required to include abortion as a
covered benefit, and would prohibit the DMHC from denying,
suspending, or revoking a plan's license, or from otherwise
imposing discipline on a plan, if the plan excludes
coverage for abortions. AB 1254 failed passage in the
Assembly Health Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
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California Catholic Conference, Inc.
Opposition
American Civil Liberties Union of California
American Congress of Obstetricians and Gynecologists, District
IX
Naral Pro-Choice California
National Health Law Program
Planned Parenthood
Analysis Prepared by:Kristene Mapile / HEALTH / (916) 319-2097