Cuomo’s regulatory overreach

by Bill Hammond |  | NY Torch

cuomo_250xThe Cuomo administration’s newly proposed ban on insurance copayments for birth control and abortion sets troubling precedents that should concern all New Yorkers, regardless of their views on reproductive rights.

The action announced by Governor Cuomo on Saturday – timed to coincide with women’s marches around the country and the anniversary of Roe v. Wade – takes the form of regulatory changes by the Department of Financial Services, which oversees insurance companies.

The proposed rules would require state-regulated health insurers to cover abortion and contraceptives without copayments, coinsurance, or deductibles. For prescription contraceptives, they would require plans to cover an initial three months’ supply, followed by a 12 months’ supply on subsequent refills.

The rules would not apply to health plans offered by large companies that self-insure, which represents about half of New Yorkers with employer-provided coverage. Also exempt would be certain nonprofit organizations and closely held companies that object to the mandate on moral grounds; however, their employees could still be covered under riders provided by health plans at no charge.

The mandates are not entirely new. As DFS Superintendent Maria Vullo writes in a letter to insurers, also dated Saturday, contraceptives are already exempt from copayments under existing state and federal laws. The new regulations are meant in part to clarify that this benefit will continue if Congress follows through on plans to repeal the Affordable Care Act.

Two provisions do represent a change from the status quo, however: the mandate for providing a 12 months’ supply of contraceptive drugs, and the ban on copayments for abortion.

As such, the administration’s action raises at least four objections having nothing to do with the usual debate over abortion:

It violates the separation of powers. Traditionally, the state has not imposed insurance mandates without a change in statute approved by the Legislature. Indeed, a bill addressing some of the very same issues (as proposed by Attorney General Eric Schneiderman) had passed the Assembly four days earlier. The measure was facing opposition in the Senate. Now, the executive branch has effectively preempted one house of the Legislature from exercising its prerogative to say no.

It fails to think through consequences. Like dozens of other mandates imposed by Albany over the years, these new rules will undoubtedly drive up health insurance premiums to some extent. Yet DFS offers no estimate of how much, nor does it document how much of an obstacle copayments have been for women seeking abortions. Lawmakers established a commission to conduct cost-benefit studies of insurance mandates in 2007, but it has never been constituted or held a meeting.

It potentially runs afoul of federal law. Under a provision of the ACA, states that impose new coverage mandates must compensate insurance companies for any added cost. Whether that provision applies in this case, and how much taxpayers might have to pay, goes unaddressed in the DFS proposal.

It puts the state on a slippery slope of giving special treatment to certain medical procedures. The administration has offered no compelling reason why abortion should be exempt from copayments, but not, say, childbirth or cancer surgery. Nor has it explained why three months’ supply of medication is adequate for asthma patients and diabetics, but not for people using contraceptives.

If this rule change stands, expect a parade of provider and consumer groups to seek similar consideration from DFS in the months and years ahead.

In its announcement, DFS said its proposed regulations “will be finalized following a 45-day notice and public comment period and become effective 60 days following final issuance.” Here’s hoping cooler heads prevail before then.