Published July 15, 2026
On July 13, 2026, EPPC Scholars Eric Kniffin, Rachel N. Morrison, and Jamie Bryan Hall submitted a public comment to the Centers for Medicare & Medicaid Services (CMS), an office within the Department Health and Human Services (HHS), in response to a Request for Information (RFI) seeking input related to CMS’s existing “essential health benefits” framework.
The RFI revolves around a provision in the Affordable Care Act that requires certain plans to cover “essential health benefits.” Congress identified ten categories of services as “essential health benefits” (or “EHBs”) but also gave the Secretary of HHS discretion to identify other essential health benefits provided that the “scope of essential health benefits … is equal to the scope of benefits provided under a typical employer plan.”
In April 2025, Kniffin, Morrison, Hall, and EPPC Scholar Mary Rice Hasson encouraged Secretary Kennedy to use this same authority to recognize that sex-rejecting procedures are not in the “typical employer plan” and therefore states may not declare sex-rejecting procedures to be essential health benefits in their benchmark plans. In June 2025, Secretary Kennedy did just that, finalizing a rule clarifying that plans cannot cover sex-rejecting procedures as an essential health benefit.
The scholars’ July 2026 comment now asks CMS to incorporate these June 2025 conclusions in its general reforms “to curtail states’ ability to manipulate the essential health benefits system.”
The first part of the comment shows why “new regulations and guidance are needed”: the current system “gives states too much freedom to create unpopular, expensive mandates.”
[R]ecent examples from Colorado and California show that the EHB system is broken and that states are taking advantage of weak CMS regulations and oversight. They are using the EHB system to impose new mandates on individuals and small employers, even as they openly celebrate that their new requirements had not been part of the typical employer plan. We hope that these practical examples demonstrate why it is critical for CMS to take this opportunity to reform EHB regulations and processes, and help CMS identify the reforms that need to be made.
The second part of the scholars’ comment recommends six specific reforms that would honor and protect the statutory “typical employer plan” requirement. Most importantly, the scholars argue that CMS should eliminate states’ ability to bypass Congress’s typical-plan requirement by referencing data about large employer plans. Such data is irrelevant to the requirement Congress established because the typical employer offering health benefits has between 10-20 employees.
The scholars also urge CMS to develop safeguards and certifications to curtail CMS’s and states’ ability to use the Affordable Care Act to burden religious liberty.
CMS’s EHB framework raises clear RFRA concerns: when a state benchmark plan (or a future CMS rule) designates a service as EHB, it can force religious employers and insurers—including religious nonprofits, ministries, and closely-held religious businesses—to fund coverage for procedures that violate their sincerely held beliefs, on pain of ACA-mandated penalties for noncompliance….
[F]ederal agencies have to do more than merely obey court orders interpreting RFRA; rather, they have an affirmative obligation to honor Americans’ religious liberty rights. … That affirmative obligation warrants proactive steps to address religious liberty issues where, as here, religious liberty conflicts are so easily foreseeable.
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s Administrative State Accountability Project.
