On May 11, 2015, the Departments of Health and Human Services, Labor, and Treasury, jointly released the twenty-sixth set of FAQs on Affordable Care Act implementation issues.  These latest FAQs clarify group health plans’ and insurance carriers’ responsibilities to cover contraceptives and other preventive services.

Under the ACA, non-grandfathered group health plans are required to cover certain preventive care items and services without participant cost sharing, as follows (certain exceptions exist for plan sponsored by religious employers):

• Evidenced-based items or services that have an “A” or “B” rating from the United States Preventive Services Task Force (USPSTF);
• Immunizations for children, adolescents, and adults recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention;
• Preventive care and screenings for infants, children, and adolescents, as recommended by the Health Resources and Services Administration (HRSA); and
• Preventive care are screenings for women, in accordance with guidelines supported by HRSA.

The HRSA guidelines for women’s preventive care specifically include all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity (as prescribed by a physician).  However, recent reports by the National Women’s Law Center and the Kaiser Family Foundation indicate that there are widespread issues with insurance carriers’ compliance with the HRSA guidelines.  According to the reports, some carriers impose cost-sharing and some only cover generic birth control (even when the participant has experienced intolerance to the generic version).  Others might exclude contraceptives patches or rings because the same chemical composition is available in generic birth control pills.

In light of these reports (which have been criticized by industry groups as “flawed” and in favor of brand-name contraceptives), the Departments have clarified that insurance carriers and group health plans must cover without cost sharing at least one of each of the methods (currently 18) identified by the FDA in its current birth control guide, which include emergency contraception such as Plan B and Ella.

Plans and carriers may continue to use reasonable medical management techniques (e.g., a plan may impose cost sharing to encourage use of other items and services within the chosen contraceptive method). For example, a plan may impose cost-sharing on brand name pharmacy items when a generic equivalent is safe and available.  Likewise, a plan may use cost sharing to encourage use of one of several FDA-approved devices within one of the 18 approved contraceptive methods.  However, if the participant’s doctor recommends a particular service or FDA-approved item based on a determination of medical necessity, the plan must cover that service or item without cost sharing, and must defer to the determination of the participant’s doctor with regard to medical necessity, which may include considerations such as severity of side effects, differences in permanence and reversibility of contraceptives, and ability to adhere to the appropriate use of the item or service.

If a plan intends to utilize reasonable medical management techniques within a specified method of contraception, it must have an easily accessible, transparent, and expedient exception process that is not unduly burdensome.  The exception process must take into account any medical exigencies involved for a claim involving urgent care (i.e., the process should not delay provision of an emergency contraceptive).

The FAQs provide additional clarification on related issues:

• The FAQs clarify that women must be offered preventive screening and genetic testing for breast cancer susceptibility gene (BRCA)-related cancer when recommended by a doctor (e.g., due to family history), even women who previously had breast, ovarian, or other cancer.
• Preventive services must be provided as recommended by the participant’s physician, regardless of the sex assigned to the participant at birth, gender identify, or gender recorded by the plan or carrier.
• Plans and carriers must provide recommended preventive services to covered dependents of enrollees (age appropriate as determined by the dependent’s physician). This includes services related to pregnancy, such as preconception and prenatal care.
• Plans and carriers must cover anesthesia for a preventive colonoscopy, without cost sharing, if determined to be medically appropriate by the participant’s physician.

The guidance contained in these FAQs is effective for plan years beginning on or after July 10, 2015 (January 1, 2016 for calendar year plans).  Employers and plan sponsors should review their plan designs for the upcoming plan year and ensure that their carrier or third party administrator is prepared to implement this latest guidance.