In July 2022, federal agencies, including the Department of Labor (DOL), Department of Health and Human Services (HHS), and Department of the Treasury (the Departments) released a list of frequently asked questions (FAQs) on the Affordable Care Act (ACA), specifically addressing the ACA and birth control. The FAQs guidance reminds employers that sponsored health plans indeed provide contraceptive coverage for women. This includes the full range of Food and Drug Administration (FDA) birth control methods. Earlier, the HHS released separate guidance clarifying how the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule applies to abortion records.
Background of the FAQs
The Departments’ previous guidance pertaining to the ACA and birth control, released in January 2022, reiterated how the ACA covers contraceptive services. Additionally, the guidance provided examples of practices reported for denying contraceptive coverage to participants. Finally, the guidance reminded providers that the plan covers contraceptive services or products without cost sharing for the individual.
However, despite previously issued guidance on the ACA and birth control, individuals continue to experience difficulty accessing contraceptive coverage without cost sharing. Therefore, the Departments have issued another FAQs guidance to:
- Clarify how contraceptive coverage requirements apply within the ACA, and
- Address the federal preemption of state law.
FAQs on ACA and Birth Control
The guidelines addressed in the Departments’ FAQs have been in effect since 2019. They require broad coverage of contraceptive services and products for women. The following questions and answers clarify for employers and plan providers requirements regarding the ACA and birth control coverage:
Q: Are plans and issuers required to cover, without the imposition of any cost sharing, contraceptive products, and services that are not included in a category of contraception described in the Health Resources and Services Administration (HRSA)-Supported Guidelines?
A: Yes. The 2019 HRSA-Supported Guidelines include a recommendation 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 as part of contraceptive care.
Q: Are plans and issuers required to cover FDA-approved emergency contraception, including emergency contraception that is available over-the-counter (OTC)?
A: Yes. Plans must cover without cost-sharing emergency contraception (levonorgestrel) and emergency contraception (ulipristal acetate), including OTC products, when the product is prescribed for an individual.
To further stress the preemption of federal law, the departments stated that they would take enforcement action, where warranted, moving forward. Violators may be subject to a $100 per person, per day excise tax, or a civil money penalty. Finally, employers should remember that as the protected class of sex includes pregnancy-related conditions, they may not discriminate against individuals who receive preventive reproductive care.