Feds to Men: Buy Your Own Aspirin and Put It Between Your Knees

Men will be paying more for insurance than they have in the past, yet receiving fewer preventive services than women, under the ACA. Part one of a two-part series on the surprising sex discrimination under the U.S. Affordable Care Act.

For the first time ever, the U.S. government will expand access to preventive health services for women without requiring equivalent coverage for men. The U.S. Affordable Care Act (ACA), sometimes labeled by critics as “Obamacare,” will be rolled out using rules likely to deny men equal access to contraception, sterilization, sexually transmitted infection prevention, domestic violence screening and counseling, and even counseling for HIV-positive men.

U.S. Health and Human Services (HHS) Secretary Kathleen Sebelius hailed these “historic guidelines,” emphasizing their gender-bias:

Previously, preventive services for women had been recommended one-by-one as part of guidelines targeted at men as well. As such, the HHS directed the independent Institute of Medicine [IOM] to, for the first time ever, conduct a scientific review and provide recommendations on specific preventive measures that meet women’s unique health needs and help keep women healthy.

The problem is that HHS went well beyond obstetrical, gynecological, maternal health and chronic disease services, adding preventive health services not unique or important only to women, Yet the services will be provided on a no-cost-sharing basis only to women.  Worse, men were already medically underserved compared to women for many of these services:

HHS was contacted for this article and had no corrections to the table.

In a nutshell, women’s IUDs, contraceptive pills and implants,  tubal ligations and birth control counseling must be provided without co-pays, doctor’s visit charges, or deductibles, while insurance companies will be free to charge men for vasectomies and contraceptive counseling. Women will universally receive free counseling if they test HIV-positive, but HIV-positive men will not.  HPV can result in anal cancer and genital warts in men as well as cervical cancer in women, but no-cost HPV DNA testing will be added to free pap smears for women, while men pay for HPV tests or go without.  The Centers for Disease Control found that 28.5 percent of men—over 40 million men—experience rape, physical violence, or stalking by an intimate partner. Those men, unlike women, will first have to ask for help and then pay out of pocket to receive it.

In contrast, a mental health service that men disproportionately need, is not a preventive health service under this Act or HHS guidelines. Men commit suicide at a rate nearly four times that of women.  Young men are at particular risk: the National Institute of Mental Health reports that the suicide rate for young men during late adolescence is almost five times that of their female peers, and by their early twenties the rate rises to almost six to one.  Reminiscent of Anatole France’s remark about the majestic equality of the law, suicide prevention services are excluded from the ACA / HHS no-cost-sharing package for both women and men.

Does President Obama’s Healthcare Plan Prohibit or Require Sex Discrimination?

HHS based its decision on Section 2713 of the ACA, which prohibits cost sharing (co-pays, co-insurance, and deductibles) in four specific categories of preventive health, including preventive health services for women.   While many critics view the ACA as mere health insurance legislation, supporters argued it would put in place experimental approaches to lower the ruinous cost of American healthcare.

One such approach was an increased focus on removing access barriers to preventive medicine.  But rather than ordering a bottom-up analysis of what preventive services would yield net cost-cutting benefits to the overall system if patient co-pays and deductibles were removed, Congress reached for three, off-the-shelf, clinically-based lists of preventive services. The three lists are:  (1) recommendations of the U.S. Preventive Services Task Force (USPSTF), (2) immunization recommendations of the Centers for Disease Control (CDC), and (3) guidelines for pediatric preventive care supported by the Health Resources and Services Administration (HRSA) of HHS.

Noting that these three off-the-shelf lists did not specifically focus on women’s preventive health services, Senator Barbara Mikulski (D-MD) proposed what came to be known as the Women’s Health Amendment, which now appears as Section 2713(4).  Thus Section 2713 of the ACA lumps together preventive services using very different clinical evidence standards — strict for USPSTF and CDC, looser for pediatrics, and no requirement for any evidence at all for women’s preventive health services.

Adam Sonfield of The Guttmacher Institute, a leading reproductive health think tank, speculated to GMP that perhaps insurance companies voluntarily may extend no-cost reproductive health services to men.  He noted that Section 2713 of the ACA “establishes a floor, not a ceiling.”

Unfortunately, this disregards the last paragraph of Section 2713(a), which created what lawyers call a safe harbor, legally protecting insurers who deny coverage to men:

Nothing in this subsection shall be construed to prohibit a plan or issuer… to deny coverage for services that are not recommended….

At the same time, Section 1557 of the ACA broadly prohibits sex discrimination. As any first year law student can tell you, all provisions of a law must be read together. Section 1557 starts, however, with an exception clause (“Except as otherwise provided in this title,”).  This could allow the Obama administration to blame Senator Mikulski and the Democratic-controlled 111th Congress for mandating sex discrimination against men by limiting the benefit of Section 2713(4) to women.

On the other hand, the ACA is the signature achievement of President Obama, and HHS has taken full credit for making no-cost-sharing preventive reproductive health services available only to women.  Moreover, it was clearly the actions of the IOM committee and HHS, not Congress, which extended Section 2713 to reproductive health care in a manner discriminatory against men.  It may also be worth noting that the exception clause of Section 1557 would be of more legal use to an insurer refusing to extend no-cost reproductive health services to men, than it would be to HHS.  HHS itself may be open to a sex discrimination lawsuit for its actions.

Despite Mr. Sonfield’s sunny view of insurance company generosity, insurers would be justified in citing the HHS action as a reason not to extend no-cost reproductive health care to men. If a Federal agency has acted to discriminate against men’s access to reproductive health care on the basis of sex, why shouldn’t an insurer take full advantage of the Section 2713 statutory safe harbor to do the same?  Why should an insurer pay out any more than it has to, after all?

Senators Barbara Mikulski (D-MD) and Olympia Snowe (R-ME) sponsored key portions of Section 2713. The office of Senator Snowe had no comment for the GMP at press time, while Senator Mikulski responded to say that “additional protections for women” were “vitally important” because of women’s “unique medical needs” and “average” lower income levels. Dr. Linda Rosenstock, Dean of the UCLA School of Public Health, and Chair of the Institute of Medicine (IOM) committee that made the recommendations adopted wholesale by HHS, referred all questions to HHS.  Dr. Paula Johnson of Brigham and Women’s Hospital in Boston, and an IOM committee member, also declined comment to GMP.  HHS was repeatedly contacted by phone and by email, up to the Assistant Secretary for Public Affairs, Chris Stenrud.  HHS did not offer a justification for its decision to discriminate against men’s access to reproductive health care.

Mind the Gaps

In light of the decision by HHS not to explain why it acted to foreclose men from equal access to no-cost reproductive health services, the report of the Institute of Medicine (IOM) committee which produced the recommendations adopted wholesale by HHS, entitled “Clinical Preventive Services for Women:  Closing the Gaps” offers the key window into the underlying cultural assumptions.

The IOM report included this dissent by Anthony LoSasso, a health services economist with the University of Illinois at Chicago who is married to a prominent Ob/Gyn:

… the committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.

GMP contacted Dr. LoSasso, who, unlike members of the IOM committee majority, spoke with GMP. The IOM majority responded to Dr. LoSasso’s dissent but, in contrast to the detail included in the dissent, the majority response is a single, conclusory paragraph.  It is available online through the link above.
Fairly read, the IOM panel majority report would appear to justify Dr. LoSasso’s dissent.  A repeatedly stated reason why any given preventive healthcare service was recommended for women without out of pocket cost is that women need the service in question.  However little if any effort was made to explain why men don’t need the same healthcare service when nothing about the service in question makes it useful only to women.  Even when the IOM majority ultimately decided not to recommend a service for women at this time (as in the case of type II diabetes, which as the IOM report admits, strikes men and women about the same) the IOM majority reasoned that women would benefit more than men because more life would be preserved for women than men. The IOM panel majority’s reasoning violates the ACA ban on discrimination on the basis of life expectancy, arguing that men’s shorter life expectancy means women get more benefit from treatment.  The IOM majority report also called for future identification of additional preventive health services, but only for women.

In fairness to the IOM committee, as quoted at the beginning of this article, the “independent” IOM was “directed” by HHS to focus purely on women.  That does not, however, explain the actions of the Obama administration.

Another major justification given in the IOM majority report was the overall average income gap between men and women.  The panel did not provide any citation for that claim. According to Dr. LoSasso, the gap was assumed to exist.

Yet a detailed analysis by Catherine Rampell in the Economix blog of The New York Times demonstrates that, even before adjusting for the greater number of hours worked outside the home by men, there is no significant pay gap between men and women earning below approximately $100,000 in annual income.   (The scattergraphs in her analysis are especially eye-opening; the post is worth a careful read.) And, as reported in Time Magazine, among men and women under 30, women now out-earn men in 147 of 150 metropolitan areas in the U.S., largely because younger women have substantially outpaced men in educational attainment. As reported there, young women average 8-percent higher incomes than young men.

In short, for the poor, the middle class, and the young—for whom co-pays and deductibles pose the greatest hurdles—men face the same or greater financial barriers to health care than women.  The IOM committee recommendation and the resulting HHS rule mandate that Kim Kardashian, Paris Hilton and Oprah Winfrey receive free reproductive health care, while a man employed as a garbage collector, gravedigger, or landscaper can be asked to shell out co-pays, co-insurance, and/or deductibles for the same care.

—Photo Leader Nancy Pelosi/Flickr