This Effort Comes After Years of Systemic Noncompliance by Insurance Plans & Women Paying Out of Pocket or Facing Administrative Red Tape to Access Birth Control
WASHINGTON, D.C. — U.S. Representative Abigail Spanberger today joined more than 150 U.S. House and U.S. Senate colleagues in urging health insurers to improve access to birth control by fully covering all contraceptives without a generic equivalent.
The Affordable Care Act (ACA) requires insurers to cover contraception at no cost. Despite these protections, multiple investigations have revealed that plans routinely violate the ACA by refusing to cover certain products, imposing administrative hurdles, and requiring unallowable cost-sharing. In response to these violations, the Biden Administration recently released additional guidance, outlining a standard that requires coverage without cost-sharing of every FDA-approved product that does not have a generic equivalent.
In a letter to America’s Health Insurance Plans (AHIP) — whose membership includes major health insurers across the country — and UnitedHealth Group, Spanberger and her colleagues urged health insurers to comply with the law and immediately adopt a “therapeutic equivalence standard” to allow coverage without cost-sharing of every FDA-approved birth control product that does not have a generic — or “therapeutic” — equivalent. Their letter comes after years of systemic noncompliance by insurance plans, forcing women to pay out of pocket or face administrative red tape to access the birth control that works best for them.
“We write to express our concerns that your members are not complying with the Affordable Care Act contraception coverage requirement, and to urge them to consider immediate adoption of the therapeutic equivalence standard outlined by the Departments of Health and Human Services, Labor, and Treasury on January 22, 2024,” wrote Spanberger and her colleagues. “Despite repeated clarification of these requirements from the Departments, multiple investigations — including by the House Oversight Committee — have revealed that plans routinely violate the ACA by refusing to cover certain products, imposing administrative hurdles like prior authorizations and step therapy (fail first protocols), and requiring patient cost-sharing.”
Their letter continued, “We urge your plans to immediately consider adopting the therapeutic equivalence standard to ensure patients’ access to the contraceptive products they need, as required by the ACA.”
The letter has been endorsed by Planned Parenthood Federations of America, Reproductive Freedom for All (formerly NARAL), Power to Decide, and Physicians for Reproductive Health.
“Under the Affordable Care Act (ACA), comprehensive coverage of birth control is not a suggestion, it’s the law. Yet, insurance companies are blatantly disregarding this vital provision,” said Gretchen Borchelt, Vice President for Reproductive Rights & Health, National Women’s Law Center. “We support these House and Senate champions for reproductive health in calling for immediate action. It’s time for health insurers to uphold their legal obligation and ensure coverage of birth control guaranteed under the ACA. We urge them to adopt the therapeutic equivalence standard outlined by the Departments of Health and Human Services, Labor, and Treasury.”
“The new guidance from the Biden-Harris Administration is urgently needed. We thank congressional champions for their continued vigilance in pushing for plans’ compliance with the ACA contraceptive coverage requirement and holding those in violation accountable,” said Raegan McDonald-Mosley, MD, MPH, CEO, Power to Decide. “As a practicing OB-GYN, I know how frustrating it is for my patients to not have the contraceptive they need covered by the health insurance they pay for. Finding a birth control method that works for you takes time, and having a method denied by insurance is a significant barrier that often prevents people from getting the contraception they need.”
The letter was led in the U.S. Senate by U.S. Senators Elizabeth Warren (D-MA), Catherine Cortez Masto (D-NV), and Tina Smith (D-MN), and in the U.S. House by U.S. Representatives Lois Frankel (D-FL-22), Ayanna Pressley (D-MA-7), Kathy Manning (D-NC-6), and Judy Chu (D-CA-28).
Click here to read the letter, and the full letter text is below.
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Dear Mr. Tuffin:
We write to express our concerns that your members are not complying with the Affordable Care Act (ACA) contraception coverage requirement, and to urge them to consider immediate adoption of the therapeutic equivalence standard outlined by the Departments of Health and Human Services, Labor, and Treasury on January 22, 2024.
As you know, the ACA requires plans to fully cover all Food and Drug Administration (FDA)-approved, -cleared, or -granted contraceptive products. Prior guidance clarified that plans must cover at least one form of each contraceptive method without cost-sharing, and also required an easily accessible, unburdensome, and transparent exceptions process when a plan does not cover the specific product a patient needs.
Despite repeated clarification of these requirements from the Departments, multiple investigations — including by the House Oversight Committee — have revealed that plans routinely violate the ACA by refusing to cover certain products, imposing administrative hurdles like prior authorizations and step therapy (fail first protocols), and requiring patient cost-sharing.
In response to this systemic noncompliance, the Departments published additional guidance on January 22, 2024, outlining a standard that requires coverage without cost-sharing of every FDA-approved product that does not have a therapeutic equivalent. If a therapeutic equivalent exists, a plan may choose to cover only one therapeutically-equivalent product, so long as it maintains an acceptable exceptions process in the case that a patient needs a specific product. The Departments will generally consider that plans adopting this standard are in compliance with federal law, essentially establishing a “safe harbor” for issuers. In addition, the use of an exceptions process should be far less frequent, a process which we believe has never worked for consumers and providers and continues to be a significant compliance problem for payers.
We urge your plans to immediately consider adopting the therapeutic equivalence standard to ensure patients’ access to the contraceptive products they need, as required by the ACA. We request answers to the following questions by March 21, 2024:
- Will your plans be adopting the therapeutic equivalence standard and in what timeframe?
- For plans that decline to adopt the therapeutic equivalence standard, how will they ensure compliance with the ACA contraception coverage requirement and in what timeframe?
- Do any of your plans employ management techniques that the Departments have explicitly listed as in violation of the ACA and how will you eliminate these barriers?
- Do all of your plans have a publicly-available exceptions process in place and where are they available on their websites?
We thank you for your attention to these issues, and we look forward to your response.
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