The Departments of Labor, Health and Human Services (HHS), and the Treasury have issued ACA FAQs Part 54 providing guidance on reproductive preventive care coverage by employer-sponsored group health plans and health insurance issuers. Specifically, the guidance addresses the coverage of contraceptives (including emergency contraceptives) and family planning counseling without cost sharing (i.e., copays, deductibles or coinsurance) and restates the law dealing with coverage of preventive services under the Affordable Care Act (ACA).
The ACA requires certain preventive care services to be provided by non-grandfathered employer-sponsored group health plans and health insurance issuers without cost sharing. For women, the 2019 Women’s Preventive Services Guidelines recommend that adolescent and adult women have access to the full range of female-controlled contraceptive methods approved by the Food and Drug Administration (FDA), effective family planning practices and sterilization procedures to prevent unintended pregnancy and improve birth outcomes.
Under the 2019 Guidelines:
The 2019 Guidelines were updated in 2021 regarding breastfeeding services and supplies, well-woman preventive care visits, access to contraceptives and contraceptive counseling, screening for human immunodeficiency virus and counseling for sexually transmitted infections. Under these 2021 guidelines, the updated preventive coverage would need to be included with no cost sharing effective January 1, 2023. Together, the 2019 and 2021 Guidelines are referred to as “the Guidelines.”
In response to the recent U.S. Supreme Court decision overturning the constitutional right to abortion services,1 President Biden issued an Executive Order aimed at ensuring access to reproductive healthcare. As a reminder, the ACA guarantees coverage of women’s preventive services, including free birth control and contraceptive counseling, for all individuals and covered dependents with the capacity to reproduce.
The departments issued FAQs Part 54 in response to reports that individuals continue to experience difficulty accessing contraceptive coverage without cost sharing and to clarify application of the contraceptive coverage requirements to fertility awareness-based methods and to emergency contraceptives as well as address federal preemption of state law.
The FAQs clarify that plans and issuers are:
Health savings accounts (HSAs), health flexible spending arrangements (health FSAs) or health reimbursement arrangements (HRAs) may reimburse expenses incurred for OTC contraception obtained without a prescription, to the extent that cost is not paid or reimbursed by another plan or coverage.
According to the FAQs (Q&A #6), plans and issuers covering costs of OTC contraceptives without a prescription should advise individuals not to seek reimbursement from an account-based plan for the cost (or the portion of the cost) of contraception paid or reimbursed by the plan or issuer and not to use an account-based plan (including any related debit card) to purchase contraception for which the individual intends to seek reimbursement from the plan or issuer.
With respect to contraception, plans and issuers may utilize reasonable medical management techniques only within a specified category of contraception and only when they are not specified in the Guidelines.
The FAQs reiterate that plans and issuers must cover, without cost sharing, at least one form of contraception in each category described in the Guidelines (or at least one form in a group of substantially similar services or products).
Whether a medical management technique is “reasonable” depends on all the relevant facts and circumstances. FAQ #8 provides examples of unreasonable medical management techniques, and FAQ #9 provides details on acceptable exception processes (and reminds plan sponsors that these processes must be prominently displayed in plan documents and shared with plan participants). The Departments also encourage plans and issuers to make this information readily accessible, such as electronically (on a website, for example) and on paper.
FAQ #10 makes it clear that a plan or issuer cannot require a participant to appeal an adverse benefit determination using the plan’s or issuer’s internal claims and appeals process as the means for an individual to obtain an exception, as that would be unduly burdensome.
The FAQs reiterate that federal law preempts any state law or laws preventing the application of the ACA’s preventive care mandate.
The Departments may also act to enforce the requirement that a state permit the free coverage of preventive care subject to the ACA. For example:
1 See “Supreme Court overturns Roe v. Wade: Q&As for employer plan sponsors,” Insider, July 2022.