Obamacare Says Insurers Can’t Deny Coverage of Contraceptives. They’re Doing It Anyway.

The Affordable Care Act, or ACA, was signed into law 13 years ago, but some provisions of the landmark health care legislation regarding contraceptive care are still unenforced. Although the ACA requires that health plans cover contraceptive care without cost-sharing, several million patients still face hurdles to accessing certain products, with companies using outdated federal guidance to justify the lack of coverage.

That’s according to a letter signed by 91 Democratic members of the House of Representatives that was sent to the Biden administration on Monday, including a two-pronged request for cracking down on health plan noncompliance. The letter, led by Democratic Women’s Caucus chair Lois Frankel and first obtained by The New Republic, asks for new guidance clarifying that insurers must cover all prescribed contraceptive products without therapeutic equivalents, as well as the out-of-pocket costs for certain over-the-counter products.

Despite updated guidance and enforcement from the Departments of Health and Human Services, Treasury, and Labor—or the tri-agencies, as they are known—the letter says that “unlawful barriers” remain to accessing contraceptive care. (HHS Secretary Xavier Becerra, Treasury Secretary Janet Yellen, and acting Secretary of Labor Julie Su were also sent a copy of the letter.) “These barriers include delays, rejections, imposition of cost-sharing, lack of an exceptions process that complies with federal rules, and lack of transparency,” the letter says, citing an October report by the House Committee on Oversight and Reform, then controlled by Democrats. That report found that at least 34 contraceptive products face coverage exclusions or cost-sharing; for 12 of those products, there is no therapeutic equivalent. The October report also found that an average of 40 percent of exception requests were denied by insurers and pharmacy benefit managers between 2015 and 2021.

For example, an insurer may fully cover a one-month contraceptive ring but not a one-year contraceptive ring; when a woman goes to her pharmacy to pick up a prescription for the latter product, she could be faced with an exorbitant co-pay or told her claim is denied, neither of which outcomes is supposed to be permissible under the ACA. With barriers such as cost-sharing or a lengthy and often unsuccessful application process to ask for an exception, people may then be less likely to access that form of contraception.

The letter argues that if insurers haven’t changed their practice over the past decade or so, they aren’t going to start now if they’re left to their own devices. Updated guidance from 2015 had clarified that “plans and issuers must cover without cost-sharing at least one form of contraception” in each of the 18 contraceptive methods identified by the Food and Drug Administration. “After eight years, it is clear that payers will not comply with current guidance,” the letter says. Although the departments have acknowledged the issue in a proposed rule on the contraceptive coverage mandate, the Biden administration has not yet taken specific action.

The letter thus calls on the tri-agencies to adopt the recommendations of the October report by requiring health plans to cover “every contraceptive product that has been approved, granted, or cleared by the [FDA], unless there is a covered therapeutic equivalent,” reflecting recent guidelines from the Health Resources and Services Administration, or HRSA. A birth control pill, for example, may have several generic equivalents, but other contraceptive products do not; the Democratic Women’s Caucus is arguing that those products without equivalents should be also included on plan formularies—that is, insurers’ lists of covered medications.

The second request in the letter pertains to over-the-counter contraceptives. Some health insurance plans require prescriptions to provide coverage, even for products typically sold over the counter, including emergency contraceptives such as Plan B and condoms. This is based on the original guidelines for insurers from HRSA from 2011, which covered contraceptive products and services “as prescribed.” Subsequent guidance from HRSA dropped that language, and the most recent guidance recommends that “the full range of [FDA]-approved, -granted, or -cleared contraceptives, effective family planning practices, and sterilization procedures be available as part of contraceptive care.”

Ironically, making a product more accessible over the counter can make it less accessible in terms of cost. For example, Plan B was approved as an over-the-counter medication in 2013, but insurers could then argue that it no longer falls under the ACA prescription requirement and is as such subject to cost-sharing. The letter’s signatories have called on the Biden administration to clear this roadblock.

“We request that the tri-agencies issue guidance clarifying that health plans must cover [over-the-counter] contraceptive products without a prescription and without out-of-pocket costs,” the letter says, adding that these products should be covered at brick-and-mortar pharmacies and mail-order pharmacies. (Thirteen states already require insurance coverage of over-the-counter contraceptive products.) This request is particularly salient, as the FDA is currently weighing the approval of an over-the-counter birth control pill and is expected to make a decision at some point this year.

The letter also comes at a fraught time for reproductive rights advocates, who worry that access to contraceptive care is under threat. In his concurrence for the opinion that struck down Roe, Supreme Court Justice Clarence Thomas wrote that the court “should reconsider all of this Court’s substantive due process precedents, including Griswold.” The Supreme Court ruled in Griswold v. Connecticut that married couples had a right to access contraception without government interference. (A separate 1972 case granted single couples the same right.)

Republican lawmakers have insisted that access to contraceptives is not under threat, but there has historically been conflation of some contraceptives with abortion care. The Supreme Court allowed some employers to decline to offer coverage for contraceptive care based on opposition to abortion in its Hobby Lobby decision in 2014. Some anti-abortion groups also characterize the morning-after pill as an “abortifacient,” even though it is separate from abortion medication and cannot end an established pregnancy. In the summer of 2022, the vast majority of House Republicans voted against legislation that would have ensured nationwide access to contraception; the bill was later blocked by Republicans in the Senate.

With Republicans now in control of the House, the chance of passing such legislation again is infinitesimal. But congressional Democrats can continue to put pressure on the Biden administration to act. The letter is the latest salvo in a campaign to ensure access to contraceptive care, even as access to abortion care is continually under threat.

“We just celebrated the anniversary of the ACA, and our work is still far from over. We’ve got to keep pushing until the promises of the ACA are a reality for women across the country,” Frankel said in a statement. “Reproductive rights are under attack like never before, so the last thing anyone needs is an uphill battle with their health plan just to get their birth control. The Democratic Women’s Caucus was glad to see the Biden Administration acknowledge this problem—and now we’re pushing for the action needed to fix it.”