In the wake of the Supreme Court's ruling last month that reversed abortion protections under Roe v. Wade, employers are pushing the feds to quickly address potential volatility in health benefits.
The Business Group on Health issued a letter to the departments of Health and Human Services, Labor and the Treasury outlining four steps the agencies could take to make it easier for employers to navigate challenges that could arise following the Dobbs v. Jackson Women's Health Organization ruling.
The group said the secretaries asked for input from the industry on areas of concern and where they may need additional guidance following the court ruling.
"We expect the applicable circumstances will evolve, employer needs will change, new issues will be identified and that we will need to continue to raise issues and requests for the Departments’ consideration and action," the Business Group wrote in the letter.
For one, the Business Group urged the departments to exercise discretion in enforcing assessments under the Mental Health Parity and Addiction Equality Act (MHPAEA) to allow employers to manage plan uncertainties around abortion, fertility and reproductive benefits as well as medical travel benefits.
A number of states are expected to roll out restrictions on abortion-related services after the ruling, and this will likely force employers to revisit benefits "near constantly" in the short term to keep up with the changing state regulations. Evolving abortion restrictions could force plans to change benefits suddenly, which is uncommon under the Employee Retirement Income Security Act (ERISA).
A more typical benefit cycle allows plan sponsors to more effectively respond to assessments and revisions required under MHPAEA.
In a similar vein, the group is calling for the agencies to "unequivocally support and defend ERISA preemption," which would help mitigate some of this volatility. The preemption would prevent employers from being pulled into a "legal morass of state-by-state assessments, litigation, or worse—personal criminal proceedings," according to the letter.
"We are profoundly concerned that an ERISA preemption challenge will get swept up unnecessarily in the political arguments of the moment and be decided in a derisive and erosive manner," the Business Group wrote. "Even if ERISA preemption is affirmed, however, the financial and nonmonetary cost of defending such claims will potentially drain vital resources that should rather be invested elsewhere and inure to the benefit of American families."
The Business Group also said that the feds should consider steps, including potential rulemaking, to clarify privacy protections under the Health Insurance Portability and Accountability Act to protect plan sponsors from aggressive state action.
The group also said the departments should consider releasing guidance that recognizes a universal distinction between medical travel benefits and major medical coverage and ensure compliant medical travel does not disqualify a member from contributing to a health savings account.
"For at least the short term, it is inarguable that the requisite certainty and uniformity will be disrupted as employer plan sponsors will have to navigate the evolving legal requirements associated with abortion, fertility, and other reproductive health coverages," the Business Group wrote. "
We believe this is a critical moment for the Departments and the Administration to act and support employer plan sponsors (and by extension other coverage providers such as multi-employer plans and issuers) to continue to fulfill the promise and ideal of ERISA for American workers and families."