What You Need to Know About New Guidance on ACA's Contraceptive Coverage
Suzanne D’Amato, Business Contributor
What You Need to Know About New Guidance on ACA's Contraceptive Coverage
ACA Contraceptive Coverage Requirements
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTThe ACA guarantees coverage of women’s preventive health care services, including free birth control and contraceptive counseling, for all individuals and covered dependents. Most group health plans are subject to these requirements, with exceptions for religious organizations and for plans sponsored by employers with a sincerely held religious objection to providing such coverage.
Group health plans that are subject to the requirement must provide cost-free coverage for the full range of FDA-approved contraceptives, without applying medical management.
Plans are required to cover at least one form of contraception in each contraceptive category as set forth in the FDA’s Birth Control Chart. Plans must also cover, without cost-sharing, contraceptive products and services that are not included in a listed category if determined by an individual’s provider to be medically appropriate for that individual.
The FAQs note that the following items and services are included in the definition of contraception and also must be covered without cost-sharing:
• Items and services integral to furnishing a recommended preventive service, such as anesthesia for a tubal ligation procedure or pregnancy tests needed before the provision of an intrauterine device.
• Clinical services, including patient education and counseling needed to provide any covered contraceptive product or service.
• Counseling and education about fertility awareness-based methods, including lactation amenorrhea.
• Over-the-counter emergency contraception when prescribed by a treating physician, even when such products are prescribed before the need for their use arises. Plans are also permitted to cover such OTC products without a prescription. If an individual’s plan does not cover OTC emergency contraception, an HSA, health FSA or HRA may be used to cover such expenses.
Medical Management
The guidance clarifies that medical management is only permitted if multiple, substantially similar services or products are available within a specific category of contraception. Plans must cover at least one option in each category and are allowed to use medical management for the other options in that category as long as the techniques are reasonable, and the plan uses the exceptions process outlined in the FAQs.
The guidance highlights practices that would constitute unreasonable medical management techniques, including:
• Denying coverage for particular brand name options where a participant’s attending provider determines and communicates to the plan that the use of such brand is medically necessary
• Requiring a participant to fail first using other options within the same category before covering a service or product deemed medically necessary by the individual’s attending provider
• Requiring a participant to fail first using other options in other categories
• Imposing an age limit on contraceptive coverage
• Requiring a participant to use the plan’s claims and appeals procedures to obtain an exception
According to the FAQs, “The Departments expect plans and issuers to remove impermissible barriers and ensure that participants, beneficiaries, and enrollees have access to the contraceptive coverage they need, as required under the law.”
Exceptions Requests
The guidance instructs plans and issuers that they must, “…make available an easily accessible, transparent, and sufficiently expedient exceptions process that is not unduly burdensome to the individual or their provider.” The agencies will determine whether an exceptions process is easily accessible, transparent, sufficiently expedient, and not unduly burdensome based on the facts and circumstances, including whether and how the plan notifies providers and participants of the process, and the steps that must be taken to utilize it.
Information about the exceptions process should be prominently displayed in plan documentation, including SPDs and other plan materials (such as drug formularies) that describe the terms of the plan’s coverage of contraceptive items. Plans are “strongly encouraged” to develop and make available a standard exception form and instructions.
State Laws Impact on Contraception Mandate
The FAQs reiterates that federal law preempts any state law that would make it impossible to comply with the contraceptive coverage mandate. It makes clear that, while states have primary enforcement authority over insurers with respect to the ACA’s preventive services requirements, HHS will assume enforcement responsibility if it determines that a state has failed to substantially enforce a provision. For example, if a state enforces a state law prohibiting insurers from covering an FDA-approved contraceptive product or service, such as the “morning after pill,” HHS may initiate an investigatory process and, if appropriate, enforce the contraceptive coverage mandate within that state.
Employer Next Steps
Plan sponsors of fully insured and self-funded plans should check with their insurers and third-party administrators to confirm their plans meet the ACA contraceptive mandates as detailed in the FAQs. Special attention should be paid to formulary designs, ensuring coverage is automatically available in each contraception category without medical management, and that compliant exception processes are in place.
Suzanne D’Amato is an employee benefits attorney with 15-years of experience in the field who leads Hilb Group’s national compliance practice.