New Guidance Issued on Contraception Coverage under ACA

August 16th, 2022 in Compliance

The Departments of Health and Human Services (HHS), the Treasury and Labor (collectively, the Departments) issued new guidance clarifying birth control protections created under the Affordable Care Act (ACA). Regulators had previously warned insurers about complying with the law to ensure birth control is accessible nationwide with no additional costs involved.

The ACA requires most private plans to offer birth control and family planning counseling at no additional cost to beneficiaries. Other services required to be offered at no additional charge include:

  • Sterilization procedures
  • Implanted devices such as intrauterine devices and diaphragms

There are strict limitations that apply to medical management. Medical management is only permitted within a specific category of contraception. Plans must automatically cover at least one option within a given category. Medical management may then be used for other options in that category provided:

  • The techniques used are reasonable.
  • The exceptions process discussed below is followed.

On July 28, the Departments issued updated FAQs which lay out which services are included in the definition of contraception and must be covered without cost sharing:

  • Items and services necessary to furnish a recommended preventive service, such as anesthesia for a tubal ligation procedure or pregnancy tests needed before the provision of an intrauterine device
  • Clinical services, including patient education and counseling needed to provide any covered contraceptive product or service
  • Counseling and education about fertility awareness-based methods, including lactation amenorrhea
  • Over-the-counter emergency contraception when prescribed by a treating physician, even when such products are prescribed before the need for their use arises
  • Plans are also permitted to cover such OTC products without a prescription. If an individual’s plan does not cover OTC emergency contraception, an HSA, health FSA or HRA may be used to cover such expenses.

The guidance clarifies the fact that the federal mandate will control if there is a conflict between the federal contraception mandate and a state law. For example, if a state were to ban emergency contraception (commonly referred to as the morning after pill), such a ban would be invalid under federal law. The guidance goes on to specify that in such a case, the Department of Health and Human Services will take direct action to enforce these federal rules.

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