Agencies Warn of Enforcement Actions Targeting Compliance With Contraceptive Coverage Mandate

Noting “troubling and persistent reports of noncompliance,” the Secretaries of DOL, HHS, and Treasury have jointly issued a letter warning health plan sponsors and insurers to make sure their plans comply with the Affordable Care Act (ACA) contraceptive coverage mandate to avoid future enforcement actions. As background, non-grandfathered group health plans and insurers must cover without cost-sharing at least one form of contraception in each FDA-identified contraceptive category, as well as contraceptive services or FDA-approved, cleared, or granted contraceptive products that an individual and their attending provider have determined to be medically appropriate for the individual. Plans and insurers may utilize reasonable medical management techniques within each category, so long as there is an “easily accessible, transparent, and sufficiently expedient” exceptions process that is not unduly burdensome and defers to the attending provider’s recommendation.

The letter outlines steps plan sponsors and insurers can follow to ensure compliance and avoid future enforcement actions. These include developing an appropriate exceptions process (or reviewing existing processes), developing and using standard forms and instructions for their processes, ensuring that information about the availability of exceptions and the instructions for the process are clearly described in plan documentation and online resources, and eliminating noncompliant medical management techniques. Warning of enforcement or other corrective actions, the letter advises that a meeting will soon be convened with industry leaders to seek commitments to correct areas of noncompliance.

EBIA Comment: January 2022 FAQ guidance similarly pointed out complaints and reports of noncompliance with the contraceptive coverage mandate (see our Checkpoint article). The FAQs cautioned that the agencies are actively investigating compliance and may take enforcement or other corrective actions. Importantly, the FAQ guidance added that the current FDA birth control guide may not identify newer or all contraceptive products approved, cleared, or granted by the FDA, and warned that, as a result, plans and insurers may not be providing coverage for the full range of FDA-approved, cleared, or granted contraceptive products as required. For more information, see EBIA’s Group Health Plan Mandates manual at Section XIV.C (“Required Preventive Health Services Coverage”) and EBIA’s Health Care Reform manual at Section XII.C (“Coverage of Preventive Health Services”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Preventive Health Services”).

Contributing Editors: EBIA Staff.