Public Comment- Re: Coverage of Certain Preventive Services Under the Affordable Care Act

Re: Coverage of Certain Preventive Services Under the Affordable Care Act; RIN 1545-BQ35, RIN
1210-AC13, & RIN 0938-AU94
Dear Secretaries Becerra and Yellen and Acting Secretary Su,

The following comments are submitted by REPRO Rising Virginia in response to the Notice of Proposed
Rulemaking (NPRM) on “Coverage of Certain Preventive Services Under the Affordable Care Act,”
published in the Federal Register on February 02, 2023.

Repro Rising Virginia is a state-based grassroots, policy and political organization that seeks to ensure
every person in the Commonwealth of Virginia has access to comprehensive and high-quality
reproductive health information and services, free of stigma and coercion and regardless of economic
status or geographic location. This critical work includes mobilizing and advocating for policies and
initiatives that would expand equitable access to a full range of contraceptive options and services,
without interference.

Everyone should have access to the full range of reproductive health care, including contraception,
regardless of their income. Contraceptive use helps prevent unintended pregnancies and supports people
in exercising reproductive autonomy. Avoiding unintended pregnancies can enable people to complete
their education, retain employment and support themselves and their families. Accessible contraception is
also critical for a range of reasons beyond preventing pregnancy. This essential care includes treating a
range of healthcare needs and conditions such as: hormonal regulation, endometriosis, uterine fibroids,
gender dysphoria, PMDD, ovarian cysts, and dysmenorrhea, just to name a few.

Economic and administrative barriers to contraceptive care make treating chronic reproductive health
conditions and preventing pregnancy most difficult for Virginians who are already experiencing barriers
to care on multiple fronts. This includes Virginians living in “contraceptive deserts” or counties without a
single health center offering the full range of contraceptive methods. This also includes BIPOC women
and gender expansive people in the Commonwealth who are uniquely impacted by structural and
environmental health disparities that occur at the intersections of racism and gender discrimination.

REPRO Rising Virginia and our coalition partners in the Virginia Reproductive Equity Alliance have
been advocating for state-level legislation that would enshrine popular elements of the Affordable care
Act into our state code. This past session, we advocated in support of SB1112 (Hashmi-D), which passed
out of the state Senate with bi-partisan support. Informed by federal Affordable Care Act (ACA)
standards, this legislation aims to eliminate burdensome co-pays, cost-sharing and reimbursement
requirements that push contraceptive care out of reach for thousands.

As drafted, the NPRM announces the Departments’ intention to make several modifications to coverage
of contraceptive services as required by the Affordable Care Act (ACA.) REPRO Rising Virginia
strongly supports the Departments’ proposal to rescind the existing moral exemption. As the Departments
correctly acknowledge, the strong public interest in making contraceptive coverage as accessible as
possible, requires the recission of the moral exemption, which is legally invalid and prevents people from
accessing no-cost contraception. The recission of the rule that currently permits entities or individuals
with moral objections to contraceptive coverage to be exempt from the ACA requirement will help restore
the critical no-cost coverage guarantee to individuals nationwide. This proposed change will notably
reduce the ability of private health plans and insurers to exclude coverage of contraceptive services, and
this will positively impact and bridge gaps in care for vulnerable communities in Virginia that REPRO
Rising serves.

The NPRM, however, continues the broad and harmful religious exemption, allowing employers who
qualify to decide whether to invoke the existing accommodation. In Virginia, REPRO Rising is
particularly concerned about the number of employees and residents who are denied access to
contraception because their employer objects to offering this coverage on religious grounds. We would
like to see this exemption removed, and if it is not removed, it is critical that the Departments collect data
on use of the religious exemption to quantify its impact.

The Departments are currently unable to know the exact number of individuals affected by the
contraceptive coverage exemptions because of a systemic failure to collect data. The Departments should
begin collecting and sharing information about which entities utilize the religious exemption, including
which take up the accommodation. Having this information will enable the Departments to understand the
impact of their own regulations. By sharing this information publicly, individuals will be able to find out
whether their employer or university excludes contraceptive coverage and whether they can utilize an
accommodation or if they are eligible for the ICA.

As an organization, REPRO Rising Virginia has a record of advocating for access to reproductive health
care within Virginia. Information about entities that invoke a religious exemption will allow our
organization to supplement the Departments’ public education efforts through targeted outreach to
individuals who are eligible for the ICA. As it stands, even if REPRO Rising wanted to begin a targeted
campaign to promote awareness of the ICA, a current lack of comprehensive data would make that work
extremely challenging and potentially less effective.

Lastly, as drafted, the NPRM includes a proposal for a new Individual Contraceptive Arrangement (ICA),
recognizing the importance of no-cost contraceptive coverage for employees who work for employers
who object to covering contraception on religious grounds. REPRO Rising Virginia takes the position that
the Departments must do everything in their power to make the ICA less burdensome and protect users
who rely on it. This means that Virginians and residents from all states should be able to easily learn
about and use the ICA. A website maintained by the Federal Departments about the ICA process and
protocols would help with this, along with ample education for providers.

If the ICA network of providers is not robust enough, it may not be helpful for patients living in areas
with few participating providers, such as in rural parts of Virginia. The ICA must also be easy to use, and
consumers should be made whole if and when problems occur. For example, if the ICA fails and an
individual pays out of pocket for contraception, they should be made whole by the provider or
government. Similarly, if a patient attempts to receive birth control services under an ICA and the
provider is unable to determine eligibility and requires cash payment instead—the patient should be
reimbursed for services rendered, upon confirmation of eligibility. If the provider fails to reimburse the
individual, the government should reimburse the patient to make the patient whole. This type of back-up
system for ICA failure is not contemplated in the NPRM as it has been drafted, but it is a crucial
consumer protection that should be considered and included in the final rule.

In a frightening and precarious reality where the U.S. Supreme Court has gutted Roe and jeopardized
access to abortion healthcare across the country, REPRO Rising Virginia considers expanding access to
contraception an urgent matter and a clear responsibility of the Federal Administration.

As we continue the work of building state-level support and awareness in the legislature and community
about contraceptive access and equity, and reproductive healthcare, including abortion, more broadly, we
are hopeful that the federal regulatory process will be a key avenue for expanding and streamlining access
to cost-free contraceptive care for all. While we applaud the NPRM’s removal of the moral exemption,
we call on the Departments to rescind or narrow the religious exemption and to at the very least, collect
data to help us better understand its impact for communities who are denied contraceptive coverage by
their employer on religious grounds. We also call on the Departments to ensure that the Individual
Contraceptive Arrangement (ICA) is easy to use, streamlined and widely accessible for both patients and
providers, including the 400,000 women and gender expansive people in Virginia who currently live in
contraceptive deserts and face unacceptable barriers to accessing the contraceptive care and coverage they
need.

Thank you in advance for your review and consideration of this comment.

Sincerely,
Lexi J. White, MPP
Policy Director
REPRO Rising Virginia