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Democrats ask insurers to meet contraceptive coverage mandate

Letter urges health insurance plans to work harder to abide by contraceptive coverage mandate

Sen. Tina Smith, D-Minn., speaks at a news conference on abortion rights on Nov. 1, 2023.
Sen. Tina Smith, D-Minn., speaks at a news conference on abortion rights on Nov. 1, 2023. (Bill Clark/CQ Roll Call)

The House Democratic Women’s Caucus has asked the biggest insurance association to urge insurers to comply with contraceptive coverage requirements and Biden administration guidance issued in January, according to a letter shared first with CQ Roll Call.

The 2010 health care law requires most health plans to cover Food and Drug Administration-approved contraception without a copay for patients going to an in-network health provider. That extends to at least one type of birth control per category, such as emergency contraception or different forms of oral hormonal pills.

But since its inception, the mandate has faced pushback and been the subject of litigation over exceptions and enforcement of what is required.

In January, the Biden administration issued guidance to health insurance companies outlining ways insurers could come into compliance with coverage regulations. The Health and Human Services Department allows insurers to use “reasonable medical management techniques” to determine how many products are covered per category. 

Some patients have reported difficulty accessing certain newer approved forms of contraception or accessing alternative products that may have fewer side effects, according to the National Women’s Law Center, which administers the CoverHer hotline for navigating if an insurer may be incorrectly billing for contraception.

The HHS guidance suggests that insurers use what is known as a therapeutic equivalence standard to ensure a drug with the same therapeutic benefit is still available for patients without cost-sharing or extra red tape. But it does not include a binding enforcement strategy.

The Democratic Women’s Caucus wrote to AHIP President and CEO Mike Tuffin on Thursday urging the group to have its members follow the suggestions HHS outlined. 

“Despite repeated clarification of these requirements from the Departments, multiple investigations — including by the House Oversight Committee — have revealed that plans routinely violate the [2010 health care law] by refusing to cover certain products, imposing administrative hurdles like prior authorizations and step therapy (fail first protocols), and requiring patient cost-sharing,” wrote the 143 House members as well as 13 senators.

The members asked Tuffin to respond if insurance plans will be adopting the standard and when; how plans that will not adopt the standard intend to comply with the coverage requirement and if any member plans have been using techniques to deny coverage as described in the HHS guidance. 
The letter also seeks clarity on which plans have an exceptions process publicly available on their websites for when a therapeutically equivalent product does not work for a patient.

The letter requests a response by March 1 and is led by DWC Chair Lois Frankel of Florida and DWC Policy Co-Chairs Ayanna S. Pressley of Massachusetts, Kathy Manning of North Carolina and Judy Chu of California.

Elizabeth Warren of Massachusetts, Catherine Cortez Masto of Nevada and Tina Smith of Minnesota are the Senate co-leads.

“Insurers are mandated under the Affordable Care Act to cover FDA-approved contraception, but that doesn’t stop them from consistently looking for loopholes to get out of this requirement,” Smith said. “When patients are prescribed birth control by their doctor, they shouldn’t get told their medication is not covered by insurance — plans need to comply with federal law.”

She added that the letter is part of a “larger push among Democrats in Congress to make sure women in America have the right to accessible and affordable contraception.” She also called on the Senate to pass her birth control bill or one of the others that address the issue.

The push for clarity around contraceptive coverage is not new to Congress.

In 2022, the then-House Oversight and Reform Committee released a report looking at 34 types of contraception commonly excluded from plans’ coverage. And in 2021, Sens. Ron Wyden, D-Ore., and Patty Murray, D-Wash., wrote to the secretaries of HHS, Treasury and Labor asking for guidance clarifying payers’ obligations in covering contraception.

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