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Q&A

How Some Health Insurance Companies Are Breaking the Law

The National Women’s Law Center is calling them out for creating barriers to accessing contraception of choice without cost.

One of the main paths to contraceptive access in the United States is via the Affordable Care Act’s coverage of contraception and contraceptive care. The ACA requires that most health insurance plans cover the full range of FDA-approved contraception methods and care without cost-sharing, or having to share the cost with the health plan through, for example, co-pays or deductibles. As of 2021, 62.1 million women have insurance coverage that includes contraception without cost-sharing.

However, insurance companies and pharmacy benefit managers are violating this law by not covering some types of FDA-approved contraception or by creating barriers to keep people from accessing care or their contraception of choice without cost. Lawmakers are calling on the government to act on these violations, which are becoming increasingly public.

Here’s an example from the National Women’s Law Center’s recent report on these violations: One woman from the District of Columbia got an IUD without cost-sharing [no cost to her] and returned to her provider for the recommended follow-up appointment, which included an ultrasound. Her [health] plan is requiring her to pay $300 in cost-sharing for the ultrasound, and rejected her appeal.” Her health plan was supposed to cover the $300 as well, according to the requirements of the Affordable Care Act. Instead, even after the woman’s appeal, the health plan refused to pay the $300. This is against the law.

We sat down with Mara Gandal-Powers, director of birth control access and senior counsel for reproductive rights and health at the National Women’s Law Center (NWLC), who has been closely monitoring this issue. 

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Arnold Ventures

What exactly does the ACA offer for contraception and contraceptive care? 

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Mara Gandal-Powers

Quite a lot, actually. The ACA’s contraceptive coverage requirement is part of the Affordable Care Act’s preventive health services provision, which is designed to help people avoid preventable conditions and improve overall health by increasing access to preventive care and screenings. 

The contraceptive coverage requirement specifies that health plans must cover the full range of Food and Drug Administration [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” 

When the requirement says contraceptive methods,” that means ways — like a pill or an IUD (intra-uterine device) — but it doesn’t mean that the ACA requires that health plans cover every single kind of pill or every single kind of IUD product. Plans have to cover without cost-sharing at least one product for each contraceptive method. 

For example, there are two categories of IUDs: IUD with copper and IUD with progestin. In each category, a plan must cover at least one product without cost-sharing. Currently, only one IUD with copper is available in the United States, so it should be covered by all plans. There are multiple IUDs with progestin, however, and thus plans can decide which products it will cover within that method. it 

Plans governed by the ACA requirement (most employer plans and all marketplace plans) must ensure that all FDA-approved methods of birth control are covered without out-of-pocket costs to the insured; all birth control-related services (like appointments) are covered without out-of-pocket costs; any medical management (efforts by the health plan to reduce its costs) must be reasonable” and limited; and there must be a clear and transparent exceptions process” so that people can get no-cost coverage of the particular birth control product they need, even if their health plan would normally require out-of-pocket costs. Sometimes people need a certain contraceptive product for health reasons; the exceptions process makes it possible for them to get the product that works for them without shared costs.

When it says no-cost-shared” or no out-of-pocket costs,” it means that while the contraception and the care do have fees (that the health plan pays to the physicians, clinics, and pharmacies), there is no part of the cost that the insured person has to pay for or share.” The contraception and care are without cost to the insured person at the time of service.

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Arnold Ventures

This law seems pretty clear cut. How are health plans and pharmacy benefit managers violating the law?

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Mara Gandal-Powers

Unfortunately, the Law Center has seen health plans and pharmacy benefit managers (companies that negotiate drug prices for insurers, also called PBMs) across the nation in non-compliance with this law in a number of ways.

Over the last several years, several trends have become apparent: health plans/​PBMs deny coverage for the specific product people need with no accessible, transparent cost-sharing exceptions process; health plans/​PBMs wrongly bill people for services associated with birth control (e.g. IUD insertion or a follow-up appointment to discuss side effects of a method) that is by law no cost to the insured under the ACA; and health plans/​PBMs fail to cover newly FDA-approved birth control products. All of these ways of denying coverage or billing people for no-cost-shared coverage are against the law.

For people who are either being denied coverage or being wrongly billed, the costs and difficulty of getting contraception may mean that they sometimes have to delay getting the contraception that meets their needs or forgo it altogether.

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Arnold Ventures

Tell us more about medical management techniques” and how health plans are using them when it comes to contraception.

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Mara Gandal-Powers

Medical management techniques are tactics that health plans use to encourage people to use lower cost health services — for example, covering a generic drug instead of a brand-name drug or requiring prior authorization before it will cover a drug or procedure. 

Insurance companies use these tactics across all of the coverage they provide, and they continue to be allowed to use them with contraceptive coverage. However, under the ACA’s requirement, the federal government has made clear that these techniques must be reasonable.” Health plans and PBMs are not always using reasonable” medical management techniques, and the result is that people cannot get the contraception and care available to them under the law. 

For example, tactics such as requiring someone to try other methods of birth control before covering the one they have chosen with their health care provider are prohibited (e.g. plans cannot make someone try pills before covering an IUD).

For people who are either being denied coverage or being wrongly billed, the costs and difficulty of getting contraception may mean that they sometimes have to delay getting the contraception that meets their needs or forgo it altogether.
Mara Gandal-Powers director of birth control access and senior counsel for reproductive rights and health at the National Women’s Law Center
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Arnold Ventures

What recourse do patients have when denied contraceptive coverage? 

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Mara Gandal-Powers

When people are denied contraceptive coverage, they have a right to file an appeal of that denial with their insurance company. If that internal appeal is successful, they can be reimbursed for out-of-pocket costs they incurred and will get coverage moving forward. If the appeal is unsuccessful, they have the right to file a complaint with the government agency that oversees their plan. Depending on how the plan is structured, that is typically the state insurance commissioner or the federal Department of Labor.

This process is tough to navigate and creates delays and issues with getting contraceptive care. It means that sometimes, due to cost, some people may have to go without contraception during a time they want and need it.

The Law Center operates a free hotline, CoverHer, which includes online resources to support people who are still experiencing out-of-pocket costs. CoverHer tracks data from those intakes to monitor for trends across the country — we look to see if problems are happening with a particular insurer or in a particular state, for example. Unfortunately, the non-compliance trends we are currently seeing cross state lines and are pervasive throughout insurance plans. 

To fix an industry-wide problem, we know policy solutions from government agencies can make a difference. The Law Center has presented the trends we have found to the Department of Health and Human Services in an effort to get the government to respond to these violations.

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Arnold Ventures

What changes do you see coming up in 2022 for contraceptive coverage? 

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Mara Gandal-Powers

We are very pleased that, in part due to our reports of plan non-compliance, the Administration issued guidance in January reiterating many of the details of the ACA’s contraceptive coverage requirement. 

It also indicated that it is seeking input on the need for further guidance and enforcement. In addition, the Administration is actively soliciting reports of plan non-compliance and included contact information for folks to make reports in the January guidance (in the final two pages).

We believe the January guidance is only a first action to make sure health plans and pharmacy benefit managers are complying with the law, and that everyone can get the birth control method of their choice without out-of-pocket costs. 

The Administration has also committed to revisiting the regulations that created sweeping exemptions to the contraceptive coverage requirement for those who claim a moral objection to contraceptive coverage. These exemptions are broad and allow virtually any employer to exclude birth control coverage from employee health plans, leaving employees to pay for birth control entirely on their own. 

The Administration has indicated it will issue new regulations in February with a public comment period; after review of the comments, new regulations would be finalized. Opponents of contraceptive coverage have been very litigious in relation to this portion of the ACA, with three cases reaching the Supreme Court (two in 2014 and one in 2016.) We anticipate opponents may follow that strategy again by filing litigation against the new regulations.

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