The Secretaries of the U.S. Department of Labor, Health and Human Services, and the Treasury have issued a joint letter reminding health plan sponsors and insurers of their obligations to comply with the Affordable Care Act (ACA) provisions concerning contraceptive coverage. In their letter, the federal agencies note reports of widespread and continuing noncompliance with the ACA mandate and outline actions that plan sponsors and insurers can take to avoid future enforcement action.
Under the ACA, non-grandfathered group health plans and insurers must provide at least one form of contraception in each FDA-identified contraceptive category, at no cost to plan members. The plans also must provide contraceptive services or FDA-approved, cleared, or granted contraceptive products that an individual and their medical provider have determined to be medically appropriate for the individual. Plans may use reasonable medical management techniques within each category. Still, they must maintain an easily accessible and efficient exception process that is not overly burdensome and defers the medical provider’s recommendations.
The federal agencies recommend that plan sponsors and agencies take the following steps to ensure compliance with the ACA contraceptive coverage mandate and avoid unwanted enforcement actions. These steps include:
- Developing an appropriate exceptions process or reviewing the existing exceptions process;
- Developing and implementing standardized forms for the exceptions process;
- Providing information and instructions about the exceptions process to members through plan documentation and online resources; and
- Eliminating non-compliant medical management techniques.
This letter echoes these same agencies’ concerns in their FAQs issued in January 2022. In addition, the agencies indicated that they are actively investigating plan sponsors and insurers for noncompliance with this mandate and may take enforcement or other corrective actions as needed.
In those FAQs, the agencies warned that the current FDA birth control guide might not identify all contraceptive products approved, cleared, or granted by the FDA, particularly if they are newer products. Therefore, plan sponsors and insurers should not rely on that guide to ensure that they provide the full range of contraceptive coverage for their members as required by the ACA.
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