Post-Roe Uncertainty for HIPAA and Navigating Policy Implications for Health Plans
Thought Leadership Insights
By Maridy Mcginnis,
President & CEO
As the Supreme Court decision overturning Roe v. Wade reverberates across the U.S., employers, payers, and third-party administrators (TPAs) are beginning to contend with its complex implications for patient privacy. Focused on ensuring that members continue to have access to comprehensive care, organizations are reviewing how best to navigate the new landscape.
Many today may not realize that the 1973 landmark Roe decision laid the foundation for the HIPAA (Health Insurance Portability and Accountability Act) privacy protections currently in effect. The 1973 court relied on the 14th Amendment’s due process clause in concluding that prohibiting abortion violated a right to privacy under the constitution by restricting a person’s ability to choose whether to have an abortion.1
States Creating a Legislative Patchwork
With federal protection now removed, states are enacting a patchwork of disparate legislation through state insurance, statutory, and criminal law. Some states are requiring health plans to cover all reproductive healthcare. Others are restricting access based on a variety of criteria, while still others are prohibiting coverage for all abortion-related services and contraceptives, allowing for coverage only for pregnancy and birth. In this rapidly changing environment, it’s possible that, in certain cases, restrictive new state laws could conflict with or supersede HIPAA privacy protections. Key to determining a plan’s approach to this challenge is the fact that not all plans operating in a given state are subject to all of that state’s laws.
For example, self-funded plans, operated by employers working with stop-loss carriers and TPAs, are not subject to most state insurance laws. As a result, they have more control over their health plan policies.2 However, they may be subject to other state laws—statutory and/or criminal—that could impact the coverage offered.
For self-insured plans, engaging with their stop-loss insurer, TPA, and legal counsel to discuss how best to manage the new complexities while continuing to offer comprehensive coverage makes sense.
By contrast, fully insured commercial health plans are subject to all state insurance laws. This means that in states with prohibitive or restrictive laws governing health plan policies for reproductive health services, members must pay some or all the costs out of pocket. In many cases, this may now include the cost to travel outside of the state to receive care.
In states with laws specifically prohibiting abortion-related services as eligible medical expenses, commercial health plan members cannot use their FSA or HRA funds to cover any of these costs. These restrictions present unique challenges to employers and benefit administrators, who will now need to access a member’s personal health information to determine whether a claim is payable as an eligible medical expense.
Notably, in states where abortion-related services are prohibited, self-insured plans still have the flexibility to allow members to use their FSA or HRA dollars to cover travel costs if 1) the services are provided in a state where they are legal and 2) the services are included in the plan as an eligible medical expense.3 In this scenario, members can use their benefits to cover the cost of services as out-of-network care. This is because, regardless of whether the employer-provided FSA/HRA is pre-tax or post-tax, it qualifies as a group health plan. As such, it must be ERISA compliant, meaning that if travel is required to obtain the services, then members may cover the cost of the travel with their benefit. A caveat to this: Because some states have already enacted laws making it illegal to assist individuals with abortion-related services, employers, stop-loss insurers, and TPAs should consult with legal counsel to assess the potential risks raised by these claims.
Maintaining Privacy in the Face of New Challenges
Employers and employees now face a new conundrum: how to ensure that employees can access their FSA/HRA funds for abortion-related services and still maintain employee privacy, as required by HIPAA. This challenge presents a unique opportunity for payers and TPAs, who are perfectly positioned to provide a HIPAA-compliant service helping to administer these benefits that shields employers from their members’ personal health information.
Members and health plans have arrived at a pivotal moment for women’s healthcare and privacy. AllMed is ready to help meet the new challenges by providing payers and TPAs with specialized expertise and on-demand resources as they support members navigating new privacy-related issues.
- Mayorquin, Orlando. What is the 14th Amendment, and what does it have to do with Roe v. Wade?. USA Today. June 24, 2022. https://www.usatoday.com/story/news/politics/2022/05/03/what-14th-amendment-scotus-used-roe-v-wade/9629256002/
- [Updated] Supreme Court Decision Overturns Roe vs. Wade, Impact to Employer Benefit Plans. June 24, 2022. https://www.sequoia.com/2022/06/draft-supreme-court-opinion-leak-impact-to-employer-benefit-plans/
- Ibid.