April 8, 2013 Secretary Kathleen Sebelius U.

S Department of Health & Human Services Submitted electronically Subject: NPRM: Certain Preventive Services Under the Affordable Care Act CMS-9968-P, Docket ID: CMS-2012-0031-63161 Dear Secretary Sebelius, et al., The following comments are submitted by the New York State Bipartisan Pro-Choice Legislative Caucus (BPCLC) in response to the Notice of Proposed Rulemaking (NPRM) on Certain Preventive Services Under the Affordable Care Act, published in the Federal Register on February 6, 2013. The BPCLC is comprised of 88 members of both the New York State Senate and Assembly. Our mission is to protect access to quality reproductive health services, respond to potential infringements on legal rights to reproductive healthcare in the State of New York, and provide a voice for state legislators in policy debates at both the state and national level. The NPRM announces the proposal of the Departments of Labor, the Treasury, and Health and Human Services to change the definition of a religious employer for purposes of an exemption, and establish an accommodation for eligible organizations that object to coverage of contraceptive services as required by the Affordable Care Act (ACA) for religious reasons. The BPCLC offers comments on the questions raised in the NPRM in order to ensure that the Departments structure the exemption and the accommodation in a seamless way that does not unfairly disadvantage those individuals subject to it or harm their health. No more women or their families should lose out on the health benefits of accessing no-cost contraception that the ACA requires. As detailed below, the BPCLC opposes any expansion of the religious employer exemption that was adopted in the final regulations. In addition, the BPCLC believes that the Departments can only justify an accommodation for a new group of eligible organizations if employees have seamless access to contraceptive coverage to the same extent as employees of non-exempt organizations. Lastly, the BPCLC supports the Departments application of preemption principles that both allow the continued enforcement of state contraceptive coverage laws that are more protective of beneficiaries access to contraceptive coverage, and preempt those that undermine the federal contraceptive coverage requirement. BPCLC, Room 905, Legislative Office Building, Albany NY 12247

A. Definition of Religious Employers for the Exemption The BPCLC opposes any expansion of the religious employer exemption that was adopted in the final rules. As the Departments state, we also hope that the Departments change to the definition of religious employers would not expand the universe of employer plans that would qualify for the exemption.1 In addition, we commend the Departments for proposing that each employer in any multiple employer plan must independently satisfy the requirements of the exemption. We urge you to stand firm in the face of pressure to change the rule that would require health insurance plans to cover contraceptives without co-pays or deductibles. The rule as adopted already contains a strong exemption allowing approximately 335,000 churches/houses of worship to opt out of providing contraceptive coverage for their employees. This exemption is nearly identical to the exemption in New York States contraceptive coverage law. New York helped paved the way for greater access to contraceptives by enacting the Womens Health and Wellness Act in 2002. This legislation extended broad consumer protections for womens health care by requiring employee health insurance plans to cover breast and cervical cancer screening, osteoporosis exams, and prescription contraceptives when the plan covered prescriptions. The impetus for this legislation was the finding that women were saddled with greater out-of-pocket costs for health care services then males, mainly due to the common exclusion of contraceptive coverage. New Yorks religious exemption, upon which the initial federal exemption was based, strikes a careful and appropriate balance of protecting religious freedom and preventing discrimination against female employees. Under the law, employers engaged in purely religious activities such as churches and seminaries are exempted from having to provide contraceptive coverage to their employees. However, employers that are engaged in secular activities such as religiously affiliated hospitals and social services agencies that do not primarily serve and employ those of the same faith are not exempted. Their employees nurses, janitors, laundry room staff and the like often come from a wide variety of religious backgrounds and should not be expected or forced to subscribe to the religious views of their employer on matters of basic health services. This law has withstood constitutional challenge, and was upheld at all three levels of New Yorks state courts. In 2007, the U.S. Supreme Court refused to hear the case. Californias contraceptive equity law, which is similar to New Yorks, has also withstood legal challenges. B. Definition of Eligible Organization for the Accommodation The Departments have proposed an accommodation for eligible organizations, such as institutions of higher education or health care providers with religious objections to contraceptive coverage. In the case of health plans sponsored by such eligible organizations, the Departments have proposed a requirement that health insurance plan providers assume responsibility for the provision of contraceptive coverage without cost sharing for beneficiaries independent of the employers sponsorship.

Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456 at 8461 (Feb. 6, 2013).

The BPCLC believes that the Departments can only justify an accommodation for eligible organizations if it is limited and employees have seamless access to no-cost contraceptives to the same extent as employees of non-exempt organizations. Otherwise, the Departments must reject the establishment of an accommodation. We understand that the Departments have proposed a four-part test for determining which organizations are eligible for the accommodation. Overall, we strongly urge the Departments to ensure that the four-part test is narrowly applied and fully enforced, so that as few women as possible are affected by it. To that end: We strongly support the Departments decision to limit the accommodation to non-profits. For-profit businesses exist to make money through commercial activity. Their purpose is profit, not religious exercise. We strongly oppose the Departments decision to offer the accommodation to organizations that refuse to cover only some contraceptives. This refusal is based on an inaccurate characterization of certain contraceptives and could create practical difficulties with implementation. The Departments must ensure that only organizations that prominently and consistently hold themselves out to the public, their employees, and students as religious may take advantage of the accommodation. The Departments must ensure that the self-certification process is robust and transparent, including by requiring eligible organizations to file the self-certifications of eligibility with the Departments. C. Implementation of the Accommodation The Departments have offered different proposals for implementing the accommodation. Such an accommodation must ensure that participants and beneficiaries receive contraceptive coverage without cost sharing and without paying a premium charge for the coverage. Any other outcome would undermine Congresss determination through its passage of the ACA that coverage of recommended preventive services without cost sharing is necessary to achieve basic health coverage for more Americans and to remedy discrimination against women in health care. To that end, the Departments must: Clearly state in the rule that if the contraceptive coverage is not in place at the start of the plan year, the eligible organization will not be accommodated that year; Ensure that beneficiaries subject to the accommodation receive timely, accurate, and clear notice about their contraceptive coverage without cost-sharing; Require that insurers and third-party administrators (TPAs) provide participants and beneficiaries with a single insurance card for both their employer-sponsored plan and their contraceptive coverage; Ensure that women in plans that are accommodated have the same legal protections as those in non-accommodated plans; and, Ensure that issuers providing the contraceptive coverage under the accommodation comply with the requirements of 2713 of the Public Health Service Act and its implementing regulations and guidance.

With respect to the mechanism through which self-insured plans will be accommodated, the Departments must implement the accommodation so that women receive seamless access to contraceptive coverage. The Departments must state that: It is a legal requirement that TPAs find issuers of the contraceptive coverage for eligible organizations with which they contract; Where an eligible organization shifts its legal responsibility to provide contraceptive coverage to TPAs and issuers, the TPAs and issuers take on the legal obligations of the employers as well; and, If an eligible organization does not have a third-party to provide coverage to its employees, it cannot be accommodated. D. Preemption Principles BPCLC strongly supports the Departments application of preemption principles that both allow the continued enforcement of state contraceptive coverage laws that are more protective of beneficiaries access to contraceptive coverage, and preempt those that undermine the federal contraceptive coverage requirement. The Departments must ensure that as many women as possible have access to no-cost contraceptives in New York and across the country, as required by the ACA. The BPCLC strongly supports the Departments statement that the provisions of these proposed rules would not prevent states from enacting stronger consumer protections than these minimum standards.2 In New York, for example, state law ensures that beneficiaries who work for religious employers that are exempt from providing contraceptive coverage may purchase a rider in order to access low-cost contraceptives. Employers that do not meet the New York laws definition of an exempt religious employer must include contraception coverage in employee health insurance plans. The Departments must ensure that their rules do not interfere with the laws of New York and other states that have stronger consumer protections such as these. E. Additional Issues Finally, the Departments must provide enforcement and oversight of the preventive services requirement overall, and of the religious employer exemption and the accommodation in particular. In summary, the BPCLC opposes any expansion of the religious employer exemption. An accommodation for religious organizations can only be justified if it is limited and structured in a seamless way that guarantees employees easy access to no-cost contraceptives to the same extent as employees of non-exempt organizations. The BPCLC strongly supports the Departments provisions that the rules would not prevent states from enacting stronger consumer protections than these minimum standards. No more women or their families should lose out on the health benefits of accessing no-cost contraception as provided through ACA. Thank you for the opportunity to submit these comments. Should you have any questions, you may reach the BPCLC through the office of State Senator Liz Krueger at 212-490-9535.

Id. at 8468.

Sincerely,

Assemblymember Ellen Jaffee Caucus Co-chair

Senator Liz Krueger Caucus Co-chair

Senator Andrea Stewart-Cousins Caucus Co-chair

Assemblymember Thomas Abinanti

Senator Eric Adams

Senator Tony Avella

Assemblymember Didi Barrett

Senator Neil D. Breslin

Assemblymember Harry B. Bronson

Assemblymember David Buchwald

Assemblymember Kevin A. Cahill

Senator Martin Malav Dilan

Assemblymember Jeffrey Dinowitz

Assemblymember Janet L. Duprey

Senator Terry Gipson

Assemblymember Patricia Fahy

Assemblymember Sandy Galef

Assemblymember Deborah J. Glick

Assemblymember Richard Gottfried Chair, Assembly Health Committee

Senator Ruth Hassell-Thompson

Senator Brad Hoylman 5

Assemblywoman Rhoda S. Jacobs

Assemblymember Micah Kellner

Assemblymember Charles D. Lavine

Assemblymember Barbara Lifton

Assemblymember Donna A. Lupardo

Assemblymember Alan Maisel

Assemblymember Shelley Mayer

Assemblymember Joan L. Millman

Senator Velmanette Montgomery

Assemblymember Walter T. Mosley

Assemblymember Daniel ODonnell

Senator Kevin S. Parker

Assemblymember Amy Paulin

Assemblymember Crystal Peoples-Stokes

Senator Jos Peralta

Assemblymember N. Nick Perry

Assemblymember J. Gary Pretlow

Assemblymember Dan Quart

Senator Gustavo Rivera

Assemblymember Linda B. Rosenthal

Assemblymember Nily Rozic

Assemblymember Addie J. Russell

Assemblymember William Scarborough

Assemblymember Michelle Schimel

Assemblymember Luis Seplveda

Senator Jos M. Serrano

Assemblymember Aravella Simotas

Assemblymember James Skoufis

Senator Daniel L. Squadron

Senator Toby Ann Stavisky

Assemblymember Phillip Steck

Assemblymember Fred W. Thiele, Jr.

Assemblymember Michele Titus

Senator Cecilia Tkaczyk

Assemblymember Keith L.T. Wright 7