President Trump Takes Aim at Affordable Care Act; New York Governor Responds

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Within hours of taking the Presidential oath of office, President Donald J. Trump issued his first executive order and it was directed at the Patient Protection and Affordable Care Act (ACA). The executive order formalized the Trump Administration’s policy to “seek the prompt repeal of the [“ACA”].” President Trump then directed executive department heads to “waive, defer, grant exemptions from, or delay the implementation of any provision or requirement” of the [ACA] that would impose a fiscal or regulatory burden on those affected in any way by the ACA “[t]o the maximum extent permitted by law.” Within 24 hours, Governor Andrew Cuomo of New York and the New York Department of Financial Services (NYDFS) announced several actions New York was taking with respect to coverage for contraception in New York.

First, NYDFS issued Supplement No. 1 to Insurance Circular Letter 1 (2003). This letter reminds those entities providing health coverage for contraceptive services that coverage under New York law is independent of federal law and tracks the guidelines adopted by the Health Resources and Services Administration (HRSA). The mandates under New York law include the provision for: “coverage for all contraceptive drugs and devices”; “coverage at no cost-sharing for at least one form of contraception within each of the methods of contraception that the FDA has identified for women”; “coverage with no cost-sharing of contraceptive services related to follow-up and management of side effects, counseling for continued adherence, and device removal”; “an exceptions process for a woman to use to gain access to a contraceptive service at no cost-sharing that is easily accessible, transparent, and sufficiently expedient and that is not unduly burdensome for a woman”; and “complete and accurate information regarding contraceptive coverage to insureds and prospective insureds.”

NYDFS also proposed the 48th Amendment to 11 NYCRR 52 (Insurance Regulation 62). This proposed regulation clarifies that health insurance policies that provide “hospital, surgical, or medical expense coverage” are also required to provide “coverage for abortion services that are medically necessary” without co-pays, coinsurance, or deductibles (unless the plan is a high deductible plan).  The proposed regulation provides for an exemption for religious employers or qualified religious organizations.

In a press release, Governor Cuomo announced that these actions are designed to “firmly secure access to reproductive rights in New York State” as contraceptive coverage is an essential feature of primary care in the State. In what Governor Cuomo hopes will be the trend, New York will ensure that “contraceptive drugs and devices are covered by commercial health insurance policies without co-pays, coinsurance, or deductibles regardless of the future of the Affordable Care Act; contraceptives are available in amounts exceeding one month’s supply at a time; and all medically necessary abortion services are covered by commercial health insurance policies without co-pays, coinsurance, or deductibles.” Governor Cuomo stated that “[t]hese regulatory actions will help ensure that whatever happens at the federal level, women in our state will have cost-free access to reproductive health care and we hope these actions serve as a model for equality across the nation.”