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Employers Offering Abortion Coverage Seek Agencies’ Protection

July 22, 2022, 9:25 AM

Two employer business groups are asking government agencies for guidance that would provide them protection against states seeking to block them from covering abortion services after the US Supreme Court’s ruling overturning Roe v. Wade.

Employers are increasingly worried they could face civil penalties or even criminal charges for actions they are contemplating to provide abortion access to their employees. Texas and Oklahoma have enacted laws that make it illegal to aid or abet an abortion.

Human resources officials and other company executives worry they could run afoul of such laws, and lawyers who work with company plans say it is an open question whether that could include paying for an abortion, or paying for travel to get an abortion, which many companies are considering.

The possibility of civil or even criminal penalties is “a big worry” for plan sponsors, Garrett Hohimer, director, policy and advocacy for the Business Group on Health, said in an interview. “Nobody enters the benefits department workforce thinking that they’re in a position where they’re ever going to be subject” to possible criminal charges.

The Business Group on Health earlier this month sought help from the secretaries of Health and Human Services, Labor, and the Treasury. The organization has more than 440 employer members that provide coverage to more than 60 million workers, family members, and retirees.

The HR Policy Association also sent a letter to the three agencies asking for governmental guidance on issues related to the high court’s decision in Dobbs v. Jackson Women’s Health Organization.

ERISA Preemption Deemed Key

Both groups pressed the department leaders to defend the federal law that preempts states from regulating self-insured health plans in which employers pay claims directly.

Employers want assurance from the agencies “to ensure plan sponsors are on solid footing in responding to state inquiries or state action that would purport to have them change the nature of their plans that would otherwise be offered uniformly,” Hohimer said.

“The best and most focused and most recognized structure under which they can get certainty is ERISA preemption,” Hohimer said, referring to the Employee Retirement Income Security Act.

“That’s the purpose of having ERISA,” he said. “It’s to be able to provide certainty and uniformity for plan offerings across multi-state employers.”

The Business Group on Health also asked for an accelerated rulemaking or guidance to update privacy protections under the Health Insurance Portability and Accountability Act “to ensure that covered entities are able to protect private health information (PHI) regarding medical procedures and related benefits or other information when lawfully undertaken in the jurisdiction where performed.”

The letter also asked for Treasury/IRS guidance assuring plan sponsors that travel benefits meeting tax code requirements are not considered significant medical benefits. Under tax law, if medical benefits are paid for by a plan before annual deductibles are met, that violates the terms of high-deductible health plans and people with those plans would not be able to continue to contribute to the tax-advantaged health savings accounts.

In addition, the letter asked for “enforcement discretion” regarding Mental Health Parity and Addiction Equity Act assessments so that employers don’t run afoul of the law if they provide travel benefits. Mental health benefits must be in parity with medical and surgical benefits under the law, and the Department of Labor has reported that employers are not in compliance.

To contact the reporter on this story: Sara Hansard in Washington at shansard@bloomberglaw.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com