Yesterday, I explained why the new regulations about which preventive services insurers will be required to cover at no additional cost did not include family planing services without really delving into the specifics of the rules themselves. Luckily, Tim Jost has looked at the regulations and as he points out, this is the simplest rule yet:

– Insurers will begin following the new rules starting September 23, but we expect to see relatively few changes at first. Grandfathered plans — i.e. all existing insurance plans — aren’t required to follow the new rules, although laws in many states already require insurers provide the preventive treatments. “Over time, however, plans will lose grandfathered status and the benefits and costs will rise.”

– The lists of preventive services is available here and it includes most screenings, laboratory tests, and vaccinations.

– Plans may also use “reasonable medical management techniques to determine the frequency, method, treatment, or setting for an item or service” if consistent with the recommendation or guideline.

– The three federal departments estimate that premiums will increase on average about 1.5 percent, with some of the increase resulting from a transfer of costs to insurers from individuals who will face reduced cost-sharing, and some due to increased demand attributable to the absence of cost-sharing.

These kinds of benefits make the entire Republican premise of repeal so completely intangible. As I will never tire from pointing out, Sen. Jon Kyl (R-AZ) took credit for the provision on Monday and the pro-repeal crowd has been remarkably silent about the new regulations. They like to discuss the law in the broad terms of deficits, entitlements, and rationing and use rhetoric that has no connection to the very tangible benefits of affordable cancer screenings and vaccinations. They’ll cling to their terms even as the law is slowly implemented, but I suspect that as the benefits increase, support for repeal will tapper off to the point where its mere mention will be seen as inappropriate. Of course health reform has its costs and the law has its problems, but eventually, people won’t want to give up what the Republicans want to take away because they’ll actually have it.

Refusing to allow Republicans to delay implementation of reform any longer and trying to avoid a Republican hold, President Obama recess appointed Harvard Professor Don Berwick to head the Center for Medicare and Medicaid Services (CMS), a position vacant since 2006. Republicans, who had had characterized Berwick as a proponent of “health care rationing,” took to the Senate floor to condemn Obama for installing Berwick before he even had a chance to appear before the Senate Finance Committee. The GOP admitted that they had criticized the nominee but argued that they had not held up his nomination and would have treated his confirmation fairly:

- SEN. JON KYL: (R-AZ): But for anybody to suggest that Republicans are to blame for the fact that Dr. Berwick’s nomination didn’t come to a vote or wasn’t brought to the senate floor is sheer fantasy. We have not held up the nomination. We have not prested a vote. We haven’t — We have not prevented a vote. [7/12/2010]

- SEN. JOHN MCCAIN: (R-AZ): But where’s the evidence of delay in Berwick’s case? It can’t fairly accuse the other side of political gamesmanship when you short circuit the process and storm off the court before the first set. [7/13/2010]

- SEN. CHUCK GRASSLEY (R-IA): The nomination hasn’t been held up by Republicans in Congress and to say otherwise is misleading. [7/7/2010]

Ironically, the Republicans are now showcasing their desire for a fair and transparent nomination process by delaying two other nominations in retaliation for Berwick’s appointment. Minority Leader Mitch McConnell (R-KY) has “blocked a Democratic request Wednesday evening to advance two of President Obama’s nominees to the U.S. Court of Appeals for the Fourth Circuit,” the Hill reports. “Democrats didn’t schedule so much as a committee hearing for Donald Berwick,” McConnell said. “So given that the President has been so dismissive of the Senate’s right to provide advice and consent under the Constitution, I am not inclined at this point to consent to the agreement proposed by my friend from North Carolina,” he added.

The GOP is also demanding to hear from Berwick, and has written a letter to Senate Finance Committee Chairman Max Baucus (D-MT) asking him to call Berwick to testify.

Yesterday, in response to allegations that states would be able to use federal dollars to cover none-Hyde abortions in the temporary high risk insurance pool programs, HHS spokesperson Jenny Backus issued a statement clarifying that states would have to follow new federal guidelines issued by the Secretary. “As is the case with FEHB plans currently, and with the Affordable Care Act and the President’s related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered, [the so-called Hyde standard]” she said. “We will reiterate this policy in guidance to those running the Pre-Existing Condition Insurance Plan at both the state and federal levels.”

But seeing the debate as an opportunity to build on their ‘broken promises of reform’ narrative and motivate social conservatives, House Republicans are now asking the Secretary “to supply them with the applications from all the states administering their own high-risk pools and the guidelines for the federal plan to determine if the programs will allow federal funding of abortions“:

Both of these cases will result in funding for abortion in direct contradiction of longstanding U.S. policy against federal funding of abortion or abortion coverage. Unfortunately, statutory language prohibiting such funding was not included in the recently enacted Patient Protection and Affordable Care Act (PPACA). Instead of a statutory prohibition, the President assured Members of Congress by signing an Executive Order that claimed to ensure that abortion would not be funded under the authorities and appropriations provided in PPACA. However, further details regarding how this assurance would be implemented and enforced have not been released.

HHS’ clarification ensures that federal dollars won’t be used to cover abortions beyond Hyde, but I’m not sure that a pro-choice President or Democrats are under some knee jerk obligation to restrict the use of federal funds for legal abortions. After all, the federal subsidy for employer based coverage does not stipulate that employers cannot provide abortion in instances other than rape or incest, or where the life of the woman is endangered and legislators typically make a decision about abortion funding with every new program.

PPACA stipulates that federal tax credits, cost sharing subsidies, and community health center funds cannot be used to fund none-Hyde abortions, but says nothing about high risk insurance pools, small business tax credits or other federal dollars. It leaves all of those decisions to the discretion of the Secretary, who could have in this case: a) approved the pools with abortion coverage since no law bars the use of federal funds for abortion in high risk pools, b) allowed states to decide whether to cover abortion in high risk pools but required them to segregate funding and use private or state money to pay for the abortion services. Option B would have brought the high-risk insurance pools in line with the standard established for the exchanges.

Sebelius decided to pivot back to the FEHB standard to live up to the principle of Obama’s executive order and the entire Stupak/Nelson abortion debate. The administration also seemed to make a political calculation. It assumed that the push back from anti-choice groups will be far more damaging than the points they’ll score with the pro-choice base. The temporary high risk pool program is also likely to attract an older and sicker population that hopefully won’t need abortion services anyway.

But what’s frustrating is that the administration is acting like the no-abortion-beyond-Hyde standard is the status quo in every instance, when in fact it’s not. The government still has the authority to fund abortions beyond Hyde Hyde in any program that does not carry an explicit restriction and one would think that pro-choice Democrats would want to exercise that right.