July 19, 2022

The executive order also directs other federal agencies to take steps to protect access to reproductive health care services. The Federal Trade Commission (FTC), in conjunction with HHS and the Attorney General, is tasked with considering options to protect consumers’ access to – and privacy when accessing – accurate reproductive health care information online. The FTC is also directed to consider options to address deceptive or fraudulent practices related to reproductive health care services. The Biden Administration will also create an interagency task force to coordinate federal policymaking and will convene a team of volunteer lawyers to provide legal support to individuals lawfully seeking or providing productive health care services.

HHS Begins Issuing Post-Dobbs Guidance

HHS has begun issuing guidance and taking administrative actions in response to President Biden’s executive order. On July 13, 2022, the HHS Office of Civil Rights (OCR) issued clarifying guidance to retail pharmacies reminding them that recipients of federal financial assistance (including Medicare and Medicaid payments) are prohibited by federal civil rights law from discriminating on the basis of race, color, national origin, sex, age and disability in their health programs and activities. The guidance reaffirms that nondiscrimination provisions under Section 1557 of the Affordable Care Act (ACA) cover pregnancy discrimination including discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy and childbirth. OCR’s guidance states that pharmacies may not discriminate against customers on bases prohibited by federal civil rights law with regard to supply medications, making determinations regarding the suitability of a prescribed medication, or advising patients about medications and how to take them.

Earlier the same week, HHS – through the Centers for Medicare and Medicaid (CMS) – issued clarifying guidance on July 11, 2022 reaffirming that patients (including pregnant women and women experiencing pregnant loss) have access to full rights and protections for emergency medical care afforded under EMTALA. The guidance also reaffirmed that EMTLALA protects providers when offering legally mandated life- or health-saving abortion services in emergency situations. Under EMTALA, hospitals participating in Medicare are required to provide all patients with an appropriate medical screening and examination, stabilizing treatment, and transfer (if necessary) to a different facility regardless of any state laws that apply to specific procedures. In this clarifying guidance, HHS states that EMTALA preempts all state laws restricting access to abortion services in emergency situations or those that create narrower exceptions than EMTALA’s definition of emergency medical condition.

Previously, HHS released guidance to assist HIPAA covered entities in understanding their responsibilities under the privacy law in light of the Dobbs decision and anticipated state abortion bans and enforcement action. The Department also published educational information for individuals on how to keep their data private, contextualizing the limitations of HIPAA protections for information accessed or stored though personal devices. See Business Group on Health’s Post-Dobbs Public Policy Alert from June 30, 2022 on this recent guidance.

Other recent steps taken by the Department include launching ReproductiveRights.gov to provide information about reproductive health care services and announcing new funding for training and technical assistance for Title X family planning providers.

What's Next?

Employer group health plan sponsors are currently facing an unprecedented level of uncertainty as they navigate the evolving federal and state legal requirements associated with abortion, fertility, and other reproductive health coverages. President Biden’s executive order on protecting access to reproductive health care is an early indication of the how the Administration will respond to policy implications resulting from the Supreme Court’s Dobbs ruling. Employer group health plan sponsors are not directly impacted by this executive order, but plans could be the target audience of future guidance from HHS and other federal agencies issued in response to this executive order.

Business Group on Health is continuing to urge federal actions to protect employer plans, employees and patients following the Dobbs decision. The Business Group recently submitted comments to HHS and the Departments of Labor and Treasury requesting additional guidance to assist employer group health plans adjust to the changes arising from Dobbs. Business Group on Health will continue to monitor developments related to this executive order and other related matters, and provide updates on future developments.

Resources

• White House: Executive Order on Protecting Access to Reproductive Health Care Services
• White House: Fact Sheet on Executive Order Protecting Access to Reproductive Health Care
• HHS: Guidance – Guidance to Nation’s Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services
• HHS: Press Release – HHS Issues Guidance to the Nation’s Retail Pharmacies in Response to Supreme Court Decision on Roe
• HHS: Guidance – Reinforcement of EMTALA Obligations Specific to Patients Who Are Pregnant or Are Experiencing Pregnancy Loss
• HHS: Press Release – HHS Announces Guidance to Clarify that Emergency Medical Care Includes Abortion Services

If you have questions, comments, or concerns about these or other regulatory and compliance issues, please contact us.

We provide this material for informational purposes only; it is not a substitute for legal advice.

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