On January 13, 2022, the Freedom of Reproductive Choice Act, P.L. 2021, c. 375 (Act), was enacted to codify the constitutional right to freedom of reproductive choice, including the rights to access contraception, to terminate a pregnancy, and to carry a pregnancy to term.
The Act provides that after concluding a study and issuing a report to the Governor and the Legislature demonstrating the necessity of a rule to implement the Act, the Department of Banking and Insurance (Department) may adopt rules providing that health benefit plans delivered, issued, executed, or renewed in New Jersey, coverage for abortion.
On November 23, 2022, the Department concluded a study and issued a report to the Governor and Legislature demonstrating the need for a regulation to provide that health benefit plans delivered, issued, executed, or renewed in this State, comprehensive coverage for abortion. Specifically, with respect to health benefits plans regulated by the Department, the study concludes there is a need for a rule to ensure coverage for abortion services, without exceptions. The report identifies the reasons such a rule is necessary, including the need for greater transparency, consistency with the Medicaid market, the de minimis cost of such coverage, and the role coverage plays in creating better social and medical outcomes.
In compliance with the Act, the Department recently proposed amendments and new rules to comply with the requirements in the Act as set forth below:
- The Department proposes new J.A.C. 11:22-5.9A, benefits for termination of pregnancy, to require that all health benefits plans and stand-alone prescription drug plans provide prescription drug benefits for abortion services, consistent with N.J.S.A. 26:2S-39 and N.J.A.C. 11:225.9.
- The Department proposes to add the definition of “religious employer,” consistent with the Act, codified at J.S.A. 26:2S-39.b, at N.J.A.C. 11:24-1.2 and 11:24A-1.2.
- The Department proposes new J.A.C. 11:24-5A and 11:24A-2A, Coverage for Abortion Services.
- Proposed new J.A.C. 11:24-5A.1 and 11:24A-2A.1 address the scope and purpose of the subchapters.
- Proposed new J.A.C. 11:24A-5A.2 and 11:24A-2A.2 provide that, except in the case of a religious employer, carriers shall provide coverage, without limit or exclusion, for abortion services. An HMO or carrier may apply cost sharing, including deductible, copayment, or coinsurance, as applicable, to such services provided such cost sharing is also applied to similar services or coverages under the policy.
- Proposed new J.A.C. 11:24-5A.3 and 11:24A-2A.3 imposes rules concerning the religious employer exclusion.
- Proposed new J.A.C. 11:24-5A.3(a) and 11:24A-2A.3(a) provides that a religious employer may request, and the HMO or carrier shall grant, an exclusion for abortion coverage, if the abortion coverage conflicts with the religious employer’s bona fide religious beliefs and practices. It further provides that if an exclusion is granted, the HMO or carrier is not permitted to exclude coverage for care that is necessary to preserve the life or health of a covered person or member or that is the result of an act of rape or incest.
- Proposed new J.A.C. 11:24-5A.3(b) and 11:24A-2A.3(b) to also provide that an HMO or carrier that issues a policy or contract containing a religious employer exclusion shall provide written notice of such exclusion to each prospective insured or covered person. Such notice must be provided in the certificate or evidence of coverage, the covered person or member’s application or enrollment form, and all sales and marketing materials.
- Proposed new J.A.C. 11:24-5A.3(c) and 11:24A-2A.3(c) to additionally provide that for each religious employer request that an HMO or carrier grants, the HMO or carrier shall make an informational filing with the Department, including a form of the written notice provided to prospective insureds.
The link to the Department of Banking and Insurance’s proposed regulations can be found here
Comments on the proposed rules may be submitted to on or before June 30, 2023 to:
Denise Illes, Chief
Office of Regulatory Affairs
New Jersey Department of Banking and Insurance
20 West State Street
PO Box 325
Trenton, NJ 08625-0325
Please direct any questions to Cynthia Borrelli.