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The ACA has a birth control guarantee. Senators are pushing for better enforcement.

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Originally published by The 19th

Democratic lawmakers are pressing the Biden administration to strengthen enforcement of a signature component of the Affordable Care Act: the guarantee that privately insured people can get birth control without paying anything out of pocket.  

The health law’s contraceptive mandate, which dates back to 2012, requires that most private insurance plans cover at least one federally approved form of each method of birth control without a copay. 

Related health care services, like an office visit to get an intrauterine device (IUD) inserted, must be covered at no cost as well. And if there is a medical reason someone can use only one particular kind of birth control — and that product is not already covered with no out-of-pocket cost — the insurance company is required to implement an “exceptions process” so that the patient does not have to pay those costs. 

That means that in theory, someone with private insurance should be able to access at least one version — either branded or generic — of hormonal birth control pill, IUD or other method of contraception without facing financial barriers. And research shows that, since the contraceptive mandate took effect, consumer spending on birth control has declined precipitously. People are also more likely to opt for IUDs, which are more expensive but also far and away the most effective form of contraception. 

But the mandate has never had a clear, strong enforcement mechanism. Reports collected since 2020 make the case that not all health plans are fully complying. And even in cases where plans may be satisfying the letter of the law, patients are still being hit with unexpected out-of-pocket costs.

“It’s part of a larger problem about the way our health insurance system functions for patients,” said Dr. Nora Becker, a health economist and physician at the University of Michigan who has studied the mandate’s impact. “And for contraception specifically, there are two reasons we’re talking about it: It’s literally the most important health service for reproductive-aged women, and we have passed a law that says it should be covered.”

Lawmakers are pressing the executive branch to take action. In a December letter, Democratic Senators Patty Murray of Washington and Ron Wyden of Oregon said they had heard reports from patients and health care providers of contraception-related medical bills that should not be permitted. They called on the Biden administration to investigate these claims — and to develop a mechanism that spurs plans to comply with the ACA mandate. 

Last month, the Department of Labor released an “FAQ” reminding insurers of the terms of the contraceptive mandate. That department, along with the departments of Health and Human Services and Treasury —  indicated they are “actively investigating” complaints about the contraceptive mandate and may take some kind of enforcement action or revise existing federal regulations to “better ensure individuals receive the coverage to which they are entitled.”

Another letter, sent Wednesday morning and signed by 34 Democratic senators, led by Sen. Maggie Hassan of New Hampshire and not including Murray and Wyden, reiterated the demand that the three departments develop strong enforcement mechanisms for the contraceptive mandate. The letter also asks that the administration craft clear guidelines for what the contraceptive copay exceptions process should look like, including creating a specific form that health care providers can use to get a patient’s out-of-pocket fees waived. 

It’s not clear how many patients are being charged bills they should not be, though independent economists and researchers say that such violations certainly do occur and can be financially onerous. In a survey published last spring by the Kaiser Family Foundation, a nonprofit, nonpartisan health policy organization, 21 percent of women with private insurance said they had paid at least something out of pocket for birth control. 

Some of those cases probably are not violations of the law. They could instead involve people who express a preference for a product but do not have a medical reason requiring it be covered. And some health plans are exempt from the birth control mandate. Employers with moral or religious exceptions are not required to comply, thanks to a rule put out under former President Donald Trump. (The Biden administration is currently revisiting that rule and is expected to narrow — but not eliminate — that exception.) Also unaffected are employer-sponsored health plans that have existed since before 2010 and were “grandfathered” in and not subject to the ACA’s consumer protection requirements. In 2020, about 14 percent of workers were covered through a grandfathered plan, according to data collected by KFF.  

It’s not clear how stronger enforcement of the contraceptive mandate would affect people covered by those plans.   

Kristine Grow, a spokesperson for the Association of Health Insurance Plans, said insurance companies are complying with the contraceptive mandate.

“We comply with the Affordable Care Act, and health insurance plans work very hard to ensure there are numerous options that are affordable and available,” she said. And in cases where patients do need an option that is not covered without a copay, she said, health plans have clear exceptions processes in place. Requests for such exceptions are rare, she said, but typically processed quickly. 

Still, stories collected through a helpline run by the National Women’s Law Center, which advocates for gender equity, suggest that some people are being hit with staggering out-of-pocket bills. 

Some of those bills do appear to violate the letter of the mandate, said Becker, who is not affiliated with the report or the law center. Other bills may fall into more of a gray area, she said. 

Some complaints collected by the center focus on people who could, because of medical side effects, use only a particular kind of birth control that their insurance did not cover at no copay. The report says that those patients were not offered the chance to get those payments waived through a clear exceptions process and were instead told they were liable for hundreds of dollars in medical bills. 

“Plans are supposed to have an easy cost-sharing exceptions process. I have not seen a plan that has one in all these years,” said Mara Gandal-Powers, NWLC’s director of birth control access and senior counsel for reproductive rights and health. “I think it’s time for there to be a standard cost-sharing exception form that all plans have to follow. It will make it easier for all plans to know what to do, and for providers.”

Other charges described were for medical services necessary to the administration of some kinds of contraception. One woman in Washington D.C., was billed $300 for an ultrasound as part of IUD insertion, according to a report published by the law center. Another in North Carolina is being billed $5,700 for the accompanying medical services that were necessary to perform a tubal ligation. 

Those reports are particularly concerning, Becker said.

“We’ll pay for surgery but not anesthesia? That’s just splitting hairs,” she said. “That’s clearly blocking access to a procedure that should be covered. Others are a little more debatable.”

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