On July 28, 2022, the Departments of Labor, Treasury and Health and Human Services issued frequently asked questions (“FAQs”) that address implementation of the Affordable Care Act with regard to contraceptive products. The FAQs generally do not introduce any new rules for plans; rather, they reiterate and clarify the current law and guidance on coverage of birth control, including guidelines supported by the Health Resources and Services Administration as updated on December 17, 2019 (“2019 HRSA-Supported Guidelines”) and December 30, 2021 (“2021 HRSA-Supported Guidelines”).
The FAQs were issued in response to President Biden’s July 8 executive order on protecting access to reproductive healthcare services. The FAQs also follow the Departments’ recently issued letter to group health plan sponsors and issuers regarding contraceptive coverage, in response to what the Departments described as “troubling and persistent reports of noncompliance” with the law. This update briefly summarizes the FAQs.
The FAQs repeat the message from prior guidance that, in general, plans must provide coverage, without cost sharing, for the “full range of female-controlled FDA-approved contraceptive methods, effective family planning practices, and sterilization procedures” as part of the required contraceptive care for adult and adolescent women, consistent with the 2019 HRSA-Supported Guidelines. This coverage includes contraceptive counseling and follow-up care, as well as instruction in natural family planning methods such as tracking basal body temperature. The FAQs list 18 categories of contraception identified in the 2019 HRSA-Supported Guidelines and note that plans must cover at least one form of contraception in each category without cost sharing. Additionally, as explained in previous FAQs published by the Departments, plans are required to cover, without cost sharing, any contraceptive services and FDA-approved, cleared or granted products that an individual and their provider have determined to be medically appropriate for the individual, whether or not the service or product is identified in the categories listed in the 2019 HRSA-Supported Guidelines.
Beginning on December 30, 2022, plans also must provide coverage consistent with 2021 HRSA-Supported Guidelines regarding access to contraceptives and contraceptive counseling.
The FAQs further explain that plans are required to cover, without cost sharing, FDA-approved emergency contraception, including over-the-counter emergency contraception, when the product is prescribed by an individual’s provider. Plans are also encouraged, but not required, to cover over-the-counter emergency contraceptive products without cost sharing when purchased without a prescription. If a plan does not cover the cost of over-the-counter contraceptives, a health savings account, health flexible spending account, or health reimbursement account can reimburse an individual for the cost (or portion of the cost) incurred, to the extent that cost is not paid or reimbursed by another plan or coverage.
The FAQs note that the Departments encourage plans to cover the dispensing of a 12-month supply of contraception, such as oral contraceptives, without cost sharing, though the Departments acknowledge that coverage of a 12-month supply is not required under the law.
Plans are permitted to utilize medical management techniques with respect to contraception, but the FAQs clarify that the techniques must be reasonable, within a specified category of contraception and only to the extent the HRSA-Supported Guidelines do not specify the frequency, method, treatment, or setting for the provision of a contraceptive service or FDA-approved, cleared, or granted product. If a plan utilizes medical management techniques within a specified category of contraception, the plan must have an easily accessible, transparent, and sufficiently expedient exceptions process that is not unduly burdensome on the individual or their provider in order for the technique to be considered reasonable.
The FAQs note that the Departments have received complaints from individuals of denials of contraceptive coverage based on unreasonable medical management techniques. The FAQs list some examples of unreasonable techniques, including the imposition of age limits on contraceptive coverage and requiring individuals to fail first using other contraceptive products before approving coverage. The Departments’ determination of what constitutes a reasonable medical management technique is based on all relevant facts and circumstances. Finally, a plan utilizing a reasonable medical management technique may not require individuals to appeal an adverse benefit determination using the plan’s internal claims and appeals process as the means to obtain an exception, as it would be unduly burdensome on the individual.
Importantly, in terms of enforcement, the FAQs clarify that both the Public Health Service Act (“PHSA”) and the Employee Retirement Income Security Act (“ERISA”) preempt state law to the extent the state law prevents the contraceptive coverage discussed in the FAQs. The Employee Benefits Security Administration and the Centers for Medicare & Medicaid Services will work to ensure compliance with the law. Violations of the contraceptive coverage requirements under federal law may be punishable by an excise tax or civil money penalty. The FAQs also provide a list of resources for individuals who are experiencing difficulty in accessing contraceptive coverage.
Please contact Slevin & Hart to discuss how the contraceptive coverage guidance affects your plan.
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