insurance

Oral Contraceptives Should be Free (From the Third-Party Trap)

An argument will soon erupt over the fate of the Affordable Care Act’s mandate that requires health insurance to cover oral contraceptives at no direct out of pocket cost to the patient. This mandate was never explicitly listed in the ACA as one of the “essential health benefits.” Its inclusion was made at the discretion of the HHS Secretary. According to press reports, the Trump Administration is about to relax the requirement.

The arguments made in favor of loosening the mandate mostly revolve around the employers’ right to freedom of conscience. Meanwhile, some advocacy groups fear this will mean many women won’t be able to obtain affordable oral contraceptives. As I recently wrote in Morning Consult, it can help temper the concerns of all parties to the argument if the Food and Drug Administration (FDA) followed the recommendation that the American Congress of Obstetricians and Gynecologists (ACOG) has been making for decades, and reclassify oral contraceptives from prescription to over the counter (OTC). Birth control pills are already available over the counter in 102 countries.

But health insurance plans usually only cover prescription drugs. Making birth control pills available OTC means that women can purchase them directly, like they purchase aspirin, ibuprofen, antihistamines and antacids.

In my Morning Consult piece, I point out that the average cash price of prescription birth control pills runs from $20 to $50 per month but can range as low as $9 per month. Various community health centers across the US, as well as Planned Parenthood, offer free oral contraceptives for those unable to afford them. If birth control pills are made available over the counter prices are likely to drop. That’s because oral contraceptives will be liberated from the third-party spending trap.

Big Win for MetLife and Other SIFIs

MetLife notched an important win this week, securing a ruling from a federal court that it is not a systemically important financial institution (SIFI) under Dodd-Frank. Like much of the Dodd-Frank Act, the SIFI designation has been controversial since its introduction in 2010. The designation is intended to help the Financial Stability Oversight Council (FSOC, another Dodd-Frank creation) to monitor companies whose demise could destabilize the country’s financial system. Putting aside the question of whether a group of regulators in Washington could see and stop a crisis more quickly than those in the trenches at the nation’s financial giants, the designation triggers a host of regulatory requirements that many companies would prefer to avoid. 

One of the most controversial aspects of the SIFI designation is its black box nature. There is no publicly available SIFI check-list. The rationale for following a more principles- than rules-based approach may be that the definition needs to remain flexible. Companies may be motivated to avoid the letter of such a rules-based approach without avoiding the spirit, leaving FSOC without the ability to monitor a company that, despite not triggering the SIFI designation, still poses a risk to the financial system. But this has left companies in a bind. The SIFI designation has real and substantial ramifications for any company that triggers it, but companies have been unable both to avoid designation and to challenge designation once applied.  It’s hard to argue that you don’t fit a certain definition if you don’t know what the definition is.

Of course, not all companies want to avoid SIFI status. Although some have argued that FSOC and other aspects of Dodd-Frank will prevent future bailouts, it seems naïve to think that the government could designate a company as a risk to the entire financial system and then sit idly by as it burns.  SIFI designation is a wink and a nod, all but assuring government support if the designated company founders in rocky times.

FSOC’s Arbitrary, Ever-Changing Double Standard

In the Dodd-Frank Act, Congress, without irony, decided the best way to end “too big to fail” was to have a committee of regulators label certain companies “too big to fail.”  That committee, established under Title I of Dodd-Frank, is called the Financial Stability Oversight Council (FSOC) and is chaired by the Treasury Secretary. Like so much of Dodd-Frank, FSOC gets to write its own rules. Unfortunately FSOC won’t even write those rules, but instead it has decided that it knows systemic risk when it sees it.

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