American College of Obstetricians & Gynecologists Issues Public Comment on Employee Benefits Security Administration Proposed Rule

WASHINGTON, Aug. 20 -- Lisa Satterfield, senior director for health economics and practice management at the American College of Obstetricians and Gynecologists, has issued a public comment on the Employee Benefits Security Administration's proposed rule entitled "Grandfathered Group Health Plans and Grandfathered Group Health Insurance Coverage". The comment was written on Aug. 12, 2020, and posted on Aug. 17, 2020:

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The American College of Obstetricians and Gynecologists (ACOG), representing more than 60,000 physicians and partners in women's health, appreciates the opportunity to provide comments on the Department of the Treasury, Department of Labor, and Department of Health and Human Services' (the Departments') notice of proposed rulemaking (NPRM) on Grandfathered Group Health Plans and Grandfathered Group Health Insurance Coverage. As physicians dedicated to providing quality care to women, ACOG is concerned with the continued existence of grandfathered group health plans and their potential impact on women's access to continuous, affordable, and meaningful health insurance coverage. For the reasons outlined in detail below, ACOG recommends that the NPRM on Grandfathered Group Health Plans and Grandfathered Group Health Insurance Coverage be withdrawn.

Proposals in the NPRM

Grandfathered group health plans are those that had enrollees prior to passage of the Patient Protection and Affordable Care Act (ACA) and that have not cut benefits or increased costs to enrollees. Grandfathered group health plans are not required to offer the same amount of patient protections as Marketplace group health plans, including, but not limited to, certain benefit and cost-sharing requirements. According to the Kaiser Family Foundation, the percent of employers that offered at least one grandfathered option to their employees increased from 20 percent in 2018 to 22 percent in 2019./1

Approximately 13 percent of covered workers were enrolled in grandfathered group health plans in 2019 (down from 16 percent in 2018)./2/,/3

This translates to roughly 17.5 million individuals. Given that grandfathered group health plans continue to be offered by one-fifth of all U.S. employers, ACOG is concerned that the proposals in this NPRM could negatively impact women's access to continuous, affordable, and meaningful health insurance coverage.

Under current regulation, there are six changes that would cause a grandfathered group health plan to lose its grandfathered status. These include: 1) elimination of all or substantially all benefits to treat a particular condition; 2) any increase in a percentage cost-sharing requirement; 3) an increase in a non-copay fixed-amount cost-sharing requirement (such as a deductible or out-of-pocket maximum) that exceeds certain thresholds; 4) an increase in a copay that exceeds certain thresholds; 5) a decrease in the employer's contribution rate by more than five percentage points; or 6) the addition of new annual dollar limits on benefits./4

The NPRM proposes to allow grandfathered plans to adjust patient cost-sharing requirements without risk of losing their grandfathered status.

Impact on Patient Access to Care and Health Outcomes

Research demonstrates that requiring financial contributions from patients for health care services has adverse effects on access to and utilization of care./5

This includes utilization of both highly effective and less effective services in equal proportions./6

For example, one study aiming to describe the relationship between the elimination of out-of-pocket costs and women's use of preventive care found that women with high out-of-pocket costs had lower utilization rates compared to their peers with lower cost-sharing obligations./7

Another study found that copayments and other forms of cost-sharing were associated with significantly lower mammography rates among women who should have undergone mammography screening according to accepted clinical guidelines./8

Premiums and other forms of patient financial contributions also serve as a barrier to receiving and maintaining coverage over the long term./9

These effects are further compounded for women, who on average earn lower wages, have fewer financial assets, accumulate less wealth, and have higher rates of poverty than men./10,/11

Women are also more likely than men to report forgoing needed health care due to cost (26 percent of women vs. 19 percent of men)./12

ACOG is concerned that, under the proposals in this NPRM, women enrolled in grandfathered group health plans may face larger out-of-pocket costs for certain services. As a result, some women may be unable to receive medically necessary care due to an inability to pay.

One essential women's health service where costs are likely to be prohibitive under the flexibilities of this NPRM is maternity care. Childbirth is the leading cause of hospitalization in the United States. For many women with employer-sponsored coverage, cost-sharing for maternity care is already prohibitively expensive, and yet data suggest that patient financial contributions for prenatal, labor and delivery, and postpartum care are on the rise. Indeed, average out-of-pocket health care spending for maternity care increased from $3,069 in 2008 to $4,569 in 2015./13

Under the NPRM, any increase in patient cost-sharing for this critical health care service would be detrimental to maternal and infant health.

Increased patient cost-sharing is especially concerning given our nation's ongoing maternal mortality crisis. As the Departments are well aware, the United States is the only well-resourced nation with a maternal mortality rate that is on the rise./14,/15

The stark racial and ethnic inequities in maternal mortality are also significant and concerning: Black women are three to four times and American Indian/Alaskan Native (AI/AN) women are two to three times more likely to die due to pregnancy-related causes than non-Hispanic white women./16

Access to and utilization of prenatal care are important contributors to maternal health outcomes.

Delaying prenatal care due to cost could lead to delayed diagnosis of certain pregnancy-related conditions, putting patient health at risk and driving up costs later in pregnancy. Delaying care related to labor and delivery could force some women to go to an emergency department (ED) for childbirth, multiplying costs to the patient and to the health system. Delaying or avoiding appropriate postpartum follow up is equally risky. National and state data indicate that a growing number of preventable maternal deaths are occurring in the postpartum period, well after hospital discharge./17

It is paramount that women be able to receive care in the critical postpartum period.

Maternal health is an important priority for HHS and the Trump Administration writ large./18

At a time when the Administration is focused on improving maternal outcomes, grandfathered health plans should not be permitted to make changes that could prove a detriment to health care access and maternal health outcomes.

Special Considerations Given the COVID-19 Pandemic

In addition to the concerns detailed above, ACOG believes it is ill-advised that the proposals in this NPRM be advanced amid the COVID-19 public health emergency and attendant economic downturn.

Current projections from the Congressional Budget Office, the Federal Reserve, and economists across the political spectrum suggest that our nation's rate of unemployment is likely to be close to or at double-digit levels in early 2021 and to remain high throughout next year./19,/20

This is not an appropriate time to place greater financial burden for health care spending on patients.

ACOG recommends that the NPRM on Grandfathered Group Health Plans and Grandfathered Group Health Insurance Coverage be withdrawn.

Thank you for the opportunity to provide comments on the Departments' NPRM on Grandfathered Group Health Plans and Grandfathered Group Health Insurance Coverage. We hope you have found our comments useful and we look forward to the opportunity to work collaboratively with the Departments to improve women's health care. Should you have any questions, please contact Emily Eckert, Manager, Health Policy, at eeckert@acog.org.

Sincerely,

Lisa Satterfield, MS, MPH, CAE, CPH

Senior Director, Health Economics & Practice Management

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Footnotes:

1/ Kaiser Family Foundation. 2019 Employer Health Benefits Survey. September 25, 2019. Available at: https://www.kff.org/report-section/ehbs-2019-section-13-grandfathered-health-plans/

2/ Ibid.

3/ Ibid.

4/ Final Rules for Grandfathered Plans, Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, Dependent Coverage, Appeals, and Patient Protections Under the Affordable Care Act. 80 Fed. Reg. 72194 (November 18, 2015). Available at: https://www.govinfo.gov/content/pkg/FR-2015-11-18/pdf/2015-29294.pdf

5/ National Health Law Program. Medicaid premiums and cost sharing. March 26, 2014. Available at: http://www.healthlaw.org/publications/browse-all-publications/Medicaid-Premiums-CostSharing#.WML7qPkrKUk

6/ Brook RH, Keeler EB, Lohr KN, Newhouse JP, Ware JE, Rogers WH, Davies AR, Sherbourne CD, Goldberg GA, Camp P, Kamberg C, Leibowitz A, Keesey J, Reboussin D. The Health Insurance Experiment: A Classic RAND Study Speaks to the Current Health Care Reform Debate. Santa Monica, CA: RAND Corporation, 2006. Available at: https://www.rand.org/pubs/research_briefs/RB9174.html

7/ Dalton VK, Carlos RC, Kolenic GE, Moniz MH, Tilea A, Kobernik EK, Fendrick AM. The Impact of Cost Sharing on Women's Use of Annual Examinations and Effective Contraception. AJOG 2018;219(1).

8/ Trivedi AN, Rakowski W, Ayanian JZ. Effect of Cost Sharing on Screening Mammography in Medicare Health Plans. NEJM 2008;358(4):375-383.

9/ Kaiser Family Foundation. The effects of premiums and cost sharing on low-income populations: Updated review of research findings. June 2017. Available at: http://files.kff.org/attachment/Issue-Brief-The-Effects-of-Premiumsand-Cost-Sharing-on-Low-Income-Populations

10/ Kaiser Family Foundation. Women and health care in the early years of the Affordable Care Act: Key findings from the 2013 Kaiser Women's Health Survey. May 2014. Available at: https://kaiserfamilyfoundation.files.wordpress.com/2014/05/8590-women-and-health-care-in-the-early-years-ofthe-affordable-care-act.pdf

11/ Kaiser Family Foundation. Women's coverage, access, and affordability: Key findings from the 2017 Kaiser Women's Health Survey. March 2018. Available at: http://files.kff.org/attachment/Issue-Brief-Womens-CoverageAccess-and-Affordability-Key-Findings-from-the-2017-Kaiser-Womens-Health-Survey

12/ Ibid.

13/ Moniz MH, Fendrick AM, Kolenic GE, Tilea A, Admon LK, Dalton VK. Out-Of-Pocket Spending For Maternity Care Among Women With Employer-Based Insurance, 2008-15. Health Affairs 2020;39(1).

14/ Centers for Disease Control and Prevention. Pregnancy Mortality Surveillance System. Available at: https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillancesystem.htm?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Freproductivehealth%2Fmaternalinfanthealth%2F pregnancy-mortality-surveillance-system.htm

15/ 'The US has the highest maternal mortality rate in the developed world. Why?' World Economic Forum. May 19, 2016. Available at: https://www.weforum.org/agenda/2016/05/what-s-behind-america-s-shockingly-highmaternal-mortality-rate/

16/ Centers for Disease Control and Prevention. Racial and Ethnic Disparities Continue in Pregnancy-Related Deaths. September 5, 2019. Available at: https://www.cdc.gov/media/releases/2019/p0905-racial-ethnic-disparitiespregnancy-deaths.html

17/ In 2018, a total of 658 women were identified as having died of maternal causes in the United States, and an additional 277 deaths were reported as having occurred more than 42 days but less than 1 year after delivery in 2018. These numbers are based on an updated method of coding (the "2018 method") maternal deaths based on the implementation of a revised U.S. Standard Certificate of Death. See Centers for Disease Control and Prevention, "Maternal Mortality in the United States: Changes in Coding, Publication, and Data Release, 2018," available at: https://www.cdc.gov/nchs/data/nvsr/nvsr69/nvsr69_02-508.pdf.

18/ United States Department of Health and Human Services. HHS Awards $9 Million to Develop New Models to Improve Obstetrics Care in Rural Communities. September 10, 2019. Available at: https://www.hhs.gov/about/news/2019/09/10/hhs-awards-9-million-new-models-obstetrics-care-ruralcommunities.html

19/ Congressional Budget Office. An Update to the Economic Outlook: 2020 to 2030. July 2, 2020. Available at: https://www.cbo.gov/publication/56442#:~:text=CBO%20projects%20that%20from%202020,projected%20to%20 average%206.1%20percent

20/ Board of Governors of the Federal Reserve System. Economic Projections of Federal Reserve Board Members and Federal Reserve Bank Presidents under Their Individual Assessments of Projected Appropriate Monetary Policy. June 2020. Available at: https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20200610.htm

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The proposed rule can be viewed at: https://beta.regulations.gov/document/EBSA-2020-0006-0001

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