42 U.S.C. § 18023 — Special rules

Page 9100 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 18023 1 See References in Text note below. 2 So in original. The word ‘‘shall’’ probably should not appear. § 18023. Special rules (a) State opt-out of abortion coverage (1) In general A State may elect to prohibit abortion cov- erage in qualified health plans offered through an Exchange in such State if such State enacts a law to provide for such prohibition. (2) Termination of opt out A State may repeal a law described in para- graph (1) and provide for the offering of such services through the Exchange. (b) Special rules relating to coverage of abortion services (1) Voluntary choice of coverage of abortion services (A) In general Notwithstanding any other provision of this title 1 (or any amendment made by this title)— 1 (i) nothing in this title 1 (or any amend- ment made by this title),1 shall be con- strued to require a qualified health plan to provide coverage of services described in subparagraph (B)(i) or (B)(ii) as part of its essential health benefits for any plan year; and (ii) subject to subsection (a), the issuer of a qualified health plan shall determine whether or not the plan provides coverage of services described in subparagraph (B)(i) or (B)(ii) as part of such benefits for the plan year. (B) Abortion services (i) Abortions for which public funding is prohibited The services described in this clause are abortions for which the expenditure of Federal funds appropriated for the Depart- ment of Health and Human Services is not permitted, based on the law as in effect as of the date that is 6 months before the be- ginning of the plan year involved. (ii) Abortions for which public funding is allowed The services described in this clause are abortions for which the expenditure of Federal funds appropriated for the Depart- ment of Health and Human Services is per- mitted, based on the law as in effect as of the date that is 6 months before the begin- ning of the plan year involved. (2) Prohibition on the use of Federal funds (A) In general If a qualified health plan provides coverage of services described in paragraph (1)(B)(i), the issuer of the plan shall not use any amount attributable to any of the following for purposes of paying for such services: (i) The credit under section 36B of title 26 (and the amount (if any) of the advance payment of the credit under section 18082 of this title). (ii) Any cost-sharing reduction under section 18071 of this title (and the amount (if any) of the advance payment of the re- duction under section 18082 of this title). (B) Establishment of allocation accounts In the case of a plan to which subpara- graph (A) applies, the issuer of the plan shall— (i) collect from each enrollee in the plan (without regard to the enrollee’s age, sex, or family status) a separate payment for each of the following: (I) an amount equal to the portion of the premium to be paid directly by the enrollee for coverage under the plan of services other than services described in paragraph (1)(B)(i) (after reduction for credits and cost-sharing reductions de- scribed in subparagraph (A)); and (II) an amount equal to the actuarial value of the coverage of services de- scribed in paragraph (1)(B)(i), and (ii) shall 2 deposit all such separate pay- ments into separate allocation accounts as provided in subparagraph (C). In the case of an enrollee whose premium for coverage under the plan is paid through em- ployee payroll deposit, the separate pay- ments required under this subparagraph shall each be paid by a separate deposit. (C) Segregation of funds (i) In general The issuer of a plan to which subpara- graph (A) applies shall establish allocation accounts described in clause (ii) for enroll- ees receiving amounts described in sub- paragraph (A). (ii) Allocation accounts The issuer of a plan to which subpara- graph (A) applies shall deposit— (I) all payments described in subpara- graph (B)(i)(I) into a separate account that consists solely of such payments and that is used exclusively to pay for services other than services described in paragraph (1)(B)(i); and (II) all payments described in subpara- graph (B)(i)(II) into a separate account that consists solely of such payments and that is used exclusively to pay for services described in paragraph (1)(B)(i). (D) Actuarial value (i) In general The issuer of a qualified health plan shall estimate the basic per enrollee, per month cost, determined on an average ac- tuarial basis, for including coverage under the qualified health plan of the services described in paragraph (1)(B)(i). (ii) Considerations In making such estimate, the issuer— (I) may take into account the impact on overall costs of the inclusion of such coverage, but may not take into account any cost reduction estimated to result from such services, including prenatal care, delivery, or postnatal care; Page 9101 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 18023 3 So in original. Probably should be followed by a period. 4 So in original. There is no subpar. (B). (II) shall estimate such costs as if such coverage were included for the entire population covered; and (III) may not estimate such a cost at less than $1 per enrollee, per month. (E) Ensuring compliance with segregation re- quirements (i) In general Subject to clause (ii), State health insur- ance commissioners shall ensure that health plans comply with the segregation requirements in this subsection through the segregation of plan funds in accord- ance with applicable provisions of gen- erally accepted accounting requirements, circulars on funds management of the Of- fice of Management and Budget, and guid- ance on accounting of the Government Ac- countability Office. (ii) Clarification Nothing in clause (i) shall prohibit the right of an individual or health plan to ap- peal such action in courts of competent ju- risdiction. (3) Rules relating to notice (A) Notice A qualified health plan that provides for coverage of the services described in para- graph (1)(B)(i) shall provide a notice to en- rollees, only as part of the summary of bene- fits and coverage explanation, at the time of enrollment, of such coverage. (B) Rules relating to payments The notice described in subparagraph (A), any advertising used by the issuer with re- spect to the plan, any information provided by the Exchange, and any other information specified by the Secretary shall provide in- formation only with respect to the total amount of the combined payments for serv- ices described in paragraph (1)(B)(i) and other services covered by the plan. (4) No discrimination on basis of provision of abortion No qualified health plan offered through an Exchange may discriminate against any indi- vidual health care provider or health care fa- cility because of its unwillingness to provide, pay for, provide coverage of, or refer for abor- tions 3 (c) Application of State and Federal laws regard- ing abortion (1) No preemption of State laws regarding abortion Nothing in this Act shall be construed to preempt or otherwise have any effect on State laws regarding the prohibition of (or require- ment of) coverage, funding, or procedural re- quirements on abortions, including parental notification or consent for the performance of an abortion on a minor. (2) No effect on Federal laws regarding abor- tion (A) 4 In general Nothing in this Act shall be construed to have any effect on Federal laws regarding— (i) conscience protection; (ii) willingness or refusal to provide abortion; and (iii) discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion. (3) No effect on Federal civil rights law Nothing in this subsection shall alter the rights and obligations of employees and em- ployers under title VII of the Civil Rights Act of 1964 [42 U.S.C. 2000e et seq.]. (d) Application of emergency services laws Nothing in this Act shall be construed to re- lieve any health care provider from providing emergency services as required by State or Fed- eral law, including section 1395dd of this title (popularly known as ‘‘EMTALA’’). (Pub. L. 111–148, title I, § 1303, title X, § 10104(c), Mar. 23, 2010, 124 Stat. 168, 896.) Editorial Notes REFERENCES IN TEXT This title, referred to in subsec. (b)(1)(A), is title I of Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 130, which en- acted this chapter and enacted, amended, and trans- ferred numerous other sections and notes in the Code. For complete classification of title I to the Code, see Tables. This Act, referred to in subsecs. (c)(1), (2)(A) and (d), is Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 119, known as the Patient Protection and Affordable Care Act. For complete classification of this Act to the Code, see Short Title note set out under section 18001 of this title and Tables. The Civil Rights Act of 1964, referred to in subsec. (c)(3), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VII of the Act is classified generally to subchapter VI (§ 2000e et seq.) of chapter 21 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of this title and Tables. AMENDMENTS 2010—Pub. L. 111–148, § 10104(c), amended section gen- erally. Prior to amendment, section consisted of sub- secs. (a) to (c) relating to special rules relating to cov- erage of abortion services, application of State and Federal laws regarding abortion, and application of emergency services laws. Executive Documents EX. ORD. NO. 13535. ENSURING ENFORCEMENT AND IMPLE- MENTATION OF ABORTION RESTRICTIONS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT Ex. Ord. No. 13535, Mar. 24, 2010, 75 F.R. 15599, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including the ‘‘Patient Protection and Afford- able Care Act’’ (Public Law 111–148), I hereby order as follows: SECTION. 1. Policy. Following the recent enactment of the Patient Protection and Affordable Care Act (the Page 9102 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 18024 1 See References in Text note below. ‘‘Act’’), it is necessary to establish an adequate en- forcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be en- dangered), consistent with a longstanding Federal stat- utory restriction that is commonly known as the Hyde Amendment. The purpose of this order is to establish a comprehensive, Government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors—Federal officials, State offi- cials (including insurance regulators) and health care providers—are aware of their responsibilities, new and old. The Act maintains current Hyde Amendment restric- tions governing abortion policy and extends those re- strictions to the newly created health insurance ex- changes. Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. 300a–7, and the Weldon Amendment, section 508(d)(1) of Public Law 111–8) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an un- willingness to provide, pay for, provide coverage of, or refer for abortions. Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the De- partment of Health and Human Services (HHS), the Of- fice of Management and Budget (OMB), and the Office of Personnel Management. SEC. 2. Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges. The Act specifi- cally prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (ex- cept in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014. The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endan- gered) and requires State health insurance commis- sioners to ensure that exchange plan funds are seg- regated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance pro- vided by the Government Accountability Office. I hereby direct the Director of the OMB and the Sec- retary of HHS to develop, within 180 days of the date of this order, a model set of segregation guidelines for State health insurance commissioners to use when de- termining whether exchange plans are complying with the Act’s segregation requirements, established in sec- tion 1303 of the Act, for enrollees receiving Federal fi- nancial assistance. The guidelines shall also offer tech- nical information that States should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges. In devel- oping these model guidelines, the Director of the OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in ac- counting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office. Upon completion of those model guidelines, the Secretary of HHS should promptly ini- tiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to State health insurance commissioners on how to comply with the model guidelines. SEC. 3. Community Health Center Program. The Act es- tablishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using Federal funds to pro- vide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language. Under the Act, the Hyde language shall apply to the authoriza- tion and appropriations of funds for Community Health Centers under section 10503 and all other relevant pro- visions. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law. Such actions should include, but are not limited to, up- dating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules. SEC. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) au- thority granted by law or Presidential directive to an agency, or the head thereof; or (ii) functions of the Di- rector of the OMB relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees or agents, or any other person. BARACK OBAMA. § 18024. Related definitions (a) Definitions relating to markets In this title: 1 (1) Group market The term ‘‘group market’’ means the health insurance market under which individuals ob- tain health insurance coverage (directly or through any arrangement) on behalf of them- selves (and their dependents) through a group health plan maintained by an employer. (2) Individual market The term ‘‘individual market’’ means the market for health insurance coverage offered to individuals other than in connection with a group health plan. (3) Large and small group markets The terms ‘‘large group market’’ and ‘‘small group market’’ mean the health insurance market under which individuals obtain health insurance coverage (directly or through any arrangement) on behalf of themselves (and their dependents) through a group health plan maintained by a large employer (as defined in subsection (b)(1)) or by a small employer (as defined in subsection (b)(2)), respectively. (b) Employers In this title: 1 (1) Large employer The term ‘‘large employer’’ means, in con- nection with a group health plan with respect to a calendar year and a plan year, an em- ployer who employed an average of at least 51 employees on business days during the pre- ceding calendar year and who employs at least 1 employee on the first day of the plan year. (2) Small employer The term ‘‘small employer’’ means, in con- nection with a group health plan with respect to a calendar year and a plan year, an em- ployer who employed an average of at least 1 but not more than 50 employees on business days during the preceding calendar year and who employs at least 1 employee on the first day of the plan year.