By: HUB’s EB Compliance Team

The DOL, IRS, and HHS (the “Agencies”) are actively emphasizing the availability of reproductive health care services. The Agencies actions were taken in part in response to reports that individuals continue to have trouble accessing contraceptive coverage without cost sharing.

On July 28, 2022, the Agencies jointly issued FAQ Part 54 to ensure non-grandfathered group health plans were aware that adolescent and adult women have access to the full range of female-controlled FDA-approved contraceptive methods, effective family planning practices, and sterilization procedures to prevent unintended pregnancy and improve birth outcomes. These include contraceptive counseling, initiation of contraceptive use, and follow-up care (for example, management and evaluation as well as changes to, and removal or discontinuation of, the contraceptive method). The Agencies also stated that instruction in fertility awareness-based methods, including the lactation amenorrhea method, should be provided for women desiring an alternative method.

Much of FAQ Part 54 reiterates the ACA requirements. Under the Affordable Care Act (the “ACA”) most private non-grandfathered health plans and insurers are required to provide contraceptive coverage, including emergency contraception, birth control and family planning counseling at no additional cost. This entitles women enrolled on a non-grandfathered group health plan, including dependents with reproductive capacity, to free birth control and contraceptive counseling. This includes, but is not limited to:

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

FAQ Part 54 also emphasizes the following points:

FAQ1 - Emphasizes that plans are required to cover items and services, without cost sharing, that are integral to the furnishing of covered of contraceptive services under the Health Resources and Services Administration (“HRSA”) Supported Guidelines. This includes, for example, anesthesia necessary for a tubal ligation procedure.

FAQ2 - In addition to covering items required by the HRSA Guidelines, plans are also required to cover, without cost sharing, any contraceptive services and FDA-approved, cleared, or granted contraceptive products that an individual’s doctor determines are medically appropriate. In other words, even if the contraceptive item or service is not listed in the HRSA Guidelines, if it is prescribed by a physician, the plan will have to cover it without cost sharing.

FAQ3 - Plans may use reasonable medical management techniques for contraceptive products or services that are not included in the categories described in the HRSA Guidelines. However, plans will need to defer to the attending physician if the physician believes an item or service the plan does not cover is medically appropriate for the covered individual.

FAQ4 - Plans required to continue to provide coverage for instruction in fertility awareness-based methods, without cost sharing.

FAQ5 - Plans are required to cover FDA-approved emergency contraception, including emergency contraception that is available over the counter (OTC) when it is prescribed by their doctor.

FAQ6 – A health savings account (HSA), health flexible spending arrangement (health FSA) or health reimbursement arrangement (HRA) can reimburse expenses incurred for OTC contraception obtained without a prescription (assuming it is not paid for by the plan).

FAQ7 – A plan can consider covering a 12-month supply of contraceptives, to increase the rate at which use of contraceptives continues, decrease the likelihood of unintended pregnancy, and result in cost savings.

FAQ8 - A plan may apply medical management techniques for contraceptives within a category listed in the HRSA Guidelines only if the guidelines do not specify the frequency, method, treatment, or setting for providing an FDA approved, cleared product, under PHS Act section 2713, based on all the relevant facts and circumstances. The FAQ lists examples of unreasonable management techniques that have been applied, including denying coverage for all brand name contraceptives even after the individual's attending physician determines that one is medically necessary.

FAQ9 & 10 - If a plan utilizes medical management techniques within a category of contraceptives, it must have an easily accessible, transparent, and sufficiently expedient exceptions process that is not unduly burdensome on the individual or their provider. An exceptions process would be considered easily accessible if plan documentation includes relevant information regarding the process, including (1) how to access the exceptions process, (2) the types of information the plan requires as part of an exception request (which should be minimally invasive and not unduly burdensome), and (3) contact information for a plan representative who can answer questions related to the exceptions process. HHS will ultimately determine if the exceptions process meets the appropriate standard. Requiring the individual or provider to use the plan’s internal claims and appeals process does not qualify. This means employers will need to work with their carriers or TPAs to determine what exceptions process they are applying and make sure they are not forcing individuals or providers to go through the plan’s appeal process.

FAQ11 & 12 – The FAQs confirm that Federal law preempts a state law that prevents the application of these contraceptive requirements. Therefore, if a state passes a law restricting access to one or more contraceptives that the ACA requires plans to cover, the Federal agencies believe that state law is invalid. If a state enforces a state law that prohibits a health plan issuer from covering an FDA-approved, cleared, or granted contraceptive product or service, HHS may initiate an investigation to determine whether the state is failing to substantially enforce the PHS Act section 2713, and if not, HHS will take enforcement action in that state.

FAQ13 – If a plan is not in compliance with the contraceptive requirements, it can be investigated by the Federal Department of Labor if it is a private employer plan. Governmental plans are investigated by the Centers for Medicare and Medicaid Services (“CMS”). CMS will also enforce these requirements against health insurance carriers.

Next Steps

Plan administrators of non-grandfathered group health plans should refresh their memory regarding the preventative care services, and particularly the contraceptive mandate. Considering the complaints being made to the Agencies that individuals continue to have trouble accessing contraceptive coverage without cost sharing, it makes sense to:

  • Review the plan document to make sure preventative care services are listed as being available without cost sharing.
  • Make an inquire to the carrier or TPA regarding whether preventative services are being processed correctly and paid without cost sharing.
  • Prepare communications reminding participants and beneficiaries regarding any changes.
  • Consider conducting a claims audit.

If you have any questions, please contact your HUB Advisor. You can also view more compliance articles in our Compliance Directory.

NOTICE OF DISCLAIMER

Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only and is not intended to constitute legal or tax advice as to an organization’s or individual's specific circumstances. It is based on Hub International's understanding of the law as it exists on the date of this publication. Subsequent developments may result in this information becoming outdated or incorrect and Hub International does not have an obligation to update this information. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your or your organization’s particular needs.