Agencies May Step Up Enforcement of Contraceptive Mandate

The U.S. Department of Health and Human Services (HHS), Department of Labor and Department of the Treasury—the three agencies that regulate health care coverage—have issued new guidance to clarify protections for birth control coverage under the Affordable Care Act (ACA). The guidance follows a recent warning that the agencies could step up enforcement of the ACA's contraceptive mandate in light of complaints about employer plans that aren't providing adequate coverage.

The guidance was posted on July 28 as a new set of frequently asked questions (FAQs). In announcing it, Labor Secretary Marty Walsh said the guidance "makes clear that the law requires group health plans and health insurance issuers to provide contraceptive coverage—including emergency contraception—at no cost to participants. If plans and issuers are not complying with the law, we will take enforcement action to ensure that participants receive this coverage, again with no cost sharing."

According to a Health Affairs Forefront blog post by Katie Keith, director of the Health Policy and the Law Initiative at the O'Neill Institute for National and Global Health Law at Georgetown University, "The latest round of frequently asked questions may be the strongest clarification to date of what is expected of plans and insurers." She added that the three agencies were using the guidance to "emphasize enforcement actions that could be taken for the failure to comply—including penalties that the agencies could impose."

ACA's Contraceptive Mandate

The guidance comes after a June 27 letter to group health plans and health insurers in which Walsh, HHS Secretary Xavier Becerra and Treasury Secretary Janet L. Yellen noted that "plans and issuers are required to cover, at no cost, at least one form of contraception within each of the contraceptive categories identified by the U.S. Food and Drug Administration (FDA). … Specifically, plans and issuers are required to have an easily accessible, transparent and sufficiently expedient exceptions process in place that ensures individuals can receive coverage without cost sharing for the FDA-approved, -cleared, or -granted contraceptive product that is medically appropriate for them."

The FAQ guidance further spells out that the ACA guarantees coverage of women's preventive services, including but not limited to:

• Hormonal methods, such as birth control pills.
• Implanted devices, such as intrauterine devices (IUDs).
• Emergency contraception, such as Plan B.
• Barrier methods, such as diaphragms and sponges.
• Patient education and counseling.
• Sterilization procedures.
• Any additional contraceptives approved, granted or cleared by the FDA.

Emergency Contraception

The guidance, Keith noted, specifies that health plans and insurers must cover FDA-approved emergency contraception, including over-the-counter (OTC) emergency contraception, "without cost sharing when a physician prescribes this medication." Plans and insurers "are encouraged, but not required, to cover OTC emergency contraceptives without cost sharing when purchased without a prescription," she said.

According to the Guttmacher Institute, nine states have adopted restrictions on emergency contraception in state-regulated insurance plans under the disputed view that emergency contraception is akin to abortifacients that destroy fertilized eggs. The new FAQs address federal pre-emption of state law and clarify that mandated contraceptive coverage applies to emergency contraceptives.

Health Account Coverage

The FAQs confirm that a health savings account (HSA), health flexible spending account (health FSA) or health reimbursement arrangement (HRA) can reimburse individuals for the cost (or partial cost) they paid for contraception that is available over the counter without a prescription—but only "to the extent that cost is not paid or reimbursed by another health plan or coverage." And, as the guidance makes clear, the health plans are generally required to cover the cost of female contraception.

To prevent double dipping, the agencies advise notifying employees who intend to seek reimbursement from the health plan not to also seek reimbursement from an HSA, health FSA or HRA for contraceptive costs paid out of pocket. Additionally, notify employees not to use an account-related debit card to buy contraception if they intend to seek reimbursement from the health plan.

Enforcement

The secretaries' June letter referred to complaints their departments have received regarding plans that fail to pay for contraceptive services without cost sharing. "The departments expect plans and issuers to immediately take steps to ensure that they are complying [with the contraceptive mandate]," the letter said, and the departments "may take enforcement or other corrective actions as appropriate" to ensure compliance.

EPIC, a national insurance broker and benefits consulting firm, noted in an Aug. 1 compliance alert that "for fully insured plans, compliance responsibility rests primarily with the carrier, but self-funded plan sponsors are encouraged to review the contraceptive coverage described in their plans."

The firm advised self-insured employers that coverage should be available for all FDA-approved contraceptives and beyond that, "if the participant's medical provider determines a certain contraceptive to be medically appropriate or necessary, that contraceptive must be fully covered by the group health plan."