QUESTION: Is our group health plan required to cover emergency contraceptives, including those that are available over-the-counter?
ANSWER: Consistent with Health Resources and Services Administration (HRSA) guidelines, nonexempt health plans must cover without cost-sharing FDA-approved emergency contraception (levonorgestrel or ulipristal acetate), including over-the-counter (OTC) products, when the product is prescribed by an attending provider. As background, the Affordable Care Act requires non-grandfathered group health plans to provide coverage for certain preventive health services without cost-sharing when delivered by in-network providers. Preventive services for women include coverage for a broad array of items and services, including contraceptives. Exemptions and accommodations are provided for certain religious employers and others with sincerely held religious beliefs or moral convictions if they meet specified requirements (see our Checkpoint article). There have been ongoing court challenges to the scope and nature of the exemptions and accommodations, along with several revisions to regulations and other guidance (see, e.g., our Checkpoint article). And more recently, courts have begun to consider the agencies’ authority to determine the preventive services that must be covered by private health plans (see, e.g., our Checkpoint article).
Nevertheless, if your plan is non-grandfathered and nonexempt, it must provide women access to the full range of contraceptive methods identified by the FDA, as prescribed by a health care provider (see our Checkpoint Question of the Week). The agencies have made clear that this requires nonexempt employers to cover emergency contraception products without cost-sharing, even when they are prescribed in advance (see our Checkpoint article). The agencies also have encouraged plans and insurers to cover OTC emergency contraception products with no cost-sharing when they are purchased without a prescription.
For more information, see EBIA’s Health Care Reform manual at Section XII.C (“Coverage of Preventive Health Services”). See also EBIA’s Group Health Plan Mandates manual at Section XIV.C (“Required Preventive Health Services Coverage”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Preventive Health Services”).
Contributing Editors: EBIA Staff.