Department Did Not Violate Weldon Amendment, According to the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR)

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By Hunter W. Collins

In an August 13, 2021 letter, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) withdrew and closed a complaint against the State of California and the Department of Managed Health Care (DMHC) finding that after review of its previous 2020 NOV decision, in light of the Weldon definition of health care entity, and the underlying investigative record, OCR determined that the violation finding cannot be sustained. The underlying complaint alleged a Weldon Amendment violation.

The Weldon Amendment, originally passed as part of the Health and Human Services (HHS) appropriations act in 2004, and has since readopted (or incorporated by reference) in each subsequent HHS appropriations act, is codified in Title 45 of the Code of Federal Regulations (CFR) section 88. The Amendment provides that “none of the funds made available [in this Act] be made available to a … State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” The Weldon Amendment further defines “health care entity” to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”

According to the August 13th OCR letter and as background, on August 22, 2014, DMHC sent a letter to seven insurers, informing them that some of their plans limited or excluded coverage of termination of pregnancy, in violation of California law that requires that all health plans treat maternity services and legal abortion neutrally. DMHC instructed the plans to amend their plan documents to cover abortions as a basic health care service and to submit the amended materials to the State. Thereafter, three complaints were filed against DMHC, alleging that this requirement violated the Weldon Amendment. In 2016, OCR closed the complaints without finding a violation and concluding that the term “health care entity” in the Weldon Amendment did not include employers or individuals insured by a health care entity. This legal interpretation later received support through two federal court decisions.

During 2017 and 2018, OCR received five new complaints against DMHC regarding the same 2014 DMHC letter. On January 24, 2020, OCR issued its Notice of Violation (2020 NOV), finding that DMHC had discriminated against health care entities in violation of the Weldon Amendment.

According to the August 13, 2021, OCR letter, as described above, OCR determined that the initial 2020 NOV finding cannot be sustained because the two primary complainants, from Skyline Wesleyan Church and Missionary Guadalupanas, do not meet the definition of a “health care entity” under the Weldon Amendment. OCR determined that neither complainants are “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Therefore, OCR withdrew its initial determination that DMHC subjected health care entities to discrimination in violation of the Weldon Amendment, and the matter was closed.

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