Several health-insurance companies across ten states are not in compliance with the Affordable Care Act when it comes to handling elective abortion coverage, according to a new report from the Government Accountability Office. The investigation, which was requested last winter by several members of the U.S. House of Representatives—including Speaker John Boehner—did not set out to measure whether insurance companies were following the law. Rather, it was intended to discover which health plans on the exchanges cover elective abortions, how they charge for that coverage, and how enrollees can determine whether the plans they’re considering cover such abortions. But over the course of its research, the GAO discovered that many of the insurance companies they surveyed—eighteen total—fell significantly short of the law's requirements. And some of them didn’t even realize it.

The Department of Health and Human Services has promised that it will soon issue further guidance to bring insurance companies into full compliance with the law.

The ACA allows insurers to sell policies that cover elective abortion on the state health-care exchanges—unless state law says otherwise—but it governs key aspects of those policies. The law and its implementing regulations prohibit the use of federal subsidies to pay for elective abortion coverage. To make sure that doesn’t happen, insurers selling such plans on the health-care exchanges must do three things: They have to estimate the monthly cost of elective abortion coverage on an average actuarial basis, which cannot be less than $1 (that prevents insurers from giving it away). Then they must collect from enrollees a separate payment equal to that cost. Finally, after they receive that payment, issuers have to segregate it from any other premiums collected from the enrollee. But before the insurer even gets to the billing stage, regulations require that customers be able to tell whether the policy they’re considering covers elective abortions. That was the plan, anyway. But it doesn't look like things are proceeding according to plan.

The GAO found a host of problems with the insurers they contacted. Two of them were charging less than $1 for elective abortion coverage, in violation of the law. Others determined that the actuarial cost of such coverage was less than $1, but rounded up to comply with the ACA. Another insurer reported that when factoring in administrative costs it was charging less than the mandated amount—and that this arrangement was approved by state regulators. In another state, regulators correctly instructed one of the surveyed insurance companies to charge at least $1. The Washington Health Benefit Exchange wasn’t even charging a separate premium for elective abortion coverage. They said they’re working to address that oversight.

Many more insurers weren’t itemizing elective abortion coverage at all. The GAO found fifteen issuers, along with the Washington Health Exchange, that were not itemizing elective-abortion coverage on their bills, nor were they sending separate bills for such coverage. Another insurer itemized abortion coverage as “coverage of services for which members’ subsidies may not be used.” The company told the GAO that it didn’t understand that regulations required it to be more specific.

The GAO didn’t ask every insurer whether it segregated elective-abortion payments from other premiums. But the GAO did learn that one issuer was unaware that it was supposed to file its segregation plan with state insurance regulators. Two others indicated that they hadn’t filed their plans with their state. The regulations state that insurance issuers “should” notify their state regulators how they segregate elective-abortion payments, but the Centers for Medicare and Medicaid Services told the GAO that “should” doesn’t mean “must.” The law requires states to make sure issuers are properly segregating funds. But how can they if the insurers don’t file their plans with regulators?

When it comes to the question of informing enrollees of elective abortion coverage, the issuers surveyed by the GAO didn’t fare much better. Four were not notifying enrollees that their plans covered elective abortion “at the time of enrollment,” as the regulations require. (According to the GAO, the Centers for Medicare and Medicaid Services considers insurers to be in compliance if they inform enrollees “in any format as long as those materials are distributed along with the summary of benefits and coverage prior to or at the time of enrollment.”) Two of the companies the GAO surveyed claimed they only recently learned they were supposed to notify customers, and were working on it. The other two just said they did not provide such information to enrollees. Those companies explained that they use “model plan materials required by the state that do not specifically include any notation that non-excepted abortion services [elective abortions] are a covered benefit, and that such information would only be provided upon enrollee request,” according to the GAO report. But that’s not quite what the law requires.

None of this is terribly surprising. Back in December I reported that it was nearly impossible to tell whether insurance offered on the health-care exchanges covered elective abortion, and in several states you couldn’t even buy abortion-free coverage. Trying to find out whether exchange plans covered such abortions proved comically difficult. One customer-service agent told me that none of New York’s plans covered elective abortion. Later, state officials confirmed that was not the case. In another state, insurance regulators couldn’t tell me whether their Obamacare plans covered elective abortions. They suggested I call individual insurers. I did. After I was bounced from sales representative to PR representative and back again, I still didn’t have an answer. Other state officials proved similarly ignorant of their health-care offerings. If the insurance companies themselves couldn’t say whether their plans covered elective abortion, who could?

The GAO tried. It found that in the twenty-eight states that do not restrict elective-abortion coverage on the exchanges, five do not offer plans excluding elective abortion. In fifteen states, some of the available plans cover elective abortion (they range from 2 percent of the available plans to 98 percent). And exchanges in eight states don’t offer elective-abortion coverage at all. Nationally, about half of the two thousand plans offered in these twenty-eight states cover elective abortion.

Naturally, critics of the Affordable Care Act have taken note of these findings. The GAO report proves that “the Act’s alleged requirements regulating abortion coverage do not exist or are widely ignored,” according to Cardinal Sean O’Malley, head of the U.S. Conference of Catholic Bishops prolife committee. Democrats for Life issued a more positive statement, but urged the administration to provide more guidance to ensure that the law is being followed. “We also would request a further review of whether federal funds are being used for abortion services,” the statement continued. “The issue of segregation of funds, notice of abortion coverage to the insured, and the minimum fee were key aspects of the law which insurers clearly need to bring into compliance.”

The Catholic Health Association also responded to the GAO report, acknowledging that monitoring the nation's many insurance plans is challenging, but "it must be done" because the "law requires it." The CHA statement pointed out that "the reason often given for getting an abortion is the inability to afford health care for the mother, unborn infant and later the child." The Affordable Care Act, the statement continued, "has already taken that challenge away for millions and has the possibility to do it for millions more if fully implemented." *

For its part, the administration has pledged to address the problems identified in the GAO report. “CMS will work with stakeholders, including states and issuers, so they fully understand and comply with the federal law prohibiting the use of federal funds for abortions,” according to Ben Wakana, spokesperson for the Department of Health and Human Services.

Yet, even while promising new guidance in coming days, on background an HHS official seemed to defend the administration against Obamacare critics who say the GAO report shows that, at least on abortion coverage, they were right all along. The GAO report itself says that its findings can’t be generalized to all plans offered on the health-care exchanges because it used a non-probability sample, the official pointed out. “The law requires issuers to collect separate payments from consumers with health-insurance plans that cover abortion services for which the use of federal funds are prohibited,” the official continued. “It does not specify a method that issuers must use to comply with the separate payment requirement.” What’s more, the “GAO has stated that this audit was NOT designed to assess CMS’ oversight of compliance with federal requirements,” according to the official. “This was beyond the scope of the engagement.”

But that’s irrelevant. The GAO has confirmed what many critics have been complaining about for months: the way abortion coverage is handled on the health-care exchanges is a mess. It’s well past time for the Obama administration to clean it up. 

* This paragraph was added after the Catholic Health Association released its statement on the GAO report.