State enforcement is essential to protect access to contraception
The Affordable Care Act (ACA) mandate on contraceptive insurance coverage has led to a massive expansion of contraceptive protection. The Affordable Care Act (ACA) has enabled private insurance to cover contraception without cost sharing for approximately 61.4 million women by 2021. And research shows that two-thirds of women using oral contraceptive pills and nearly three-quarters of women using the vaginal contraceptive ring are no longer paying out-of-pocket for these methods.[1]
However, the ACA’s coverage requirement for contraception and associated services without cost-sharing is not being fully met. Numerous reports detail insurer ACA violations by charging copays for contraception, denying coverage for clinical services associated with providing contraception (like pregnancy tests prior to IUD insertion, and ultrasounds related to contraceptive services), refusing to cover certain kinds of contraceptives, and failing to have a sufficiently accessible, expedient, or transparent exceptions process when a non-covered contraceptive is needed for medical necessity.
Lack of Enforcement
Following reports that patients were facing barriers to accessing contraception without cost-sharing, the House Oversight Committee in 2022 opened an investigation into contraceptive coverage for individuals enrolled in private health plans. The investigation revealed that insurers nationwide are not complying to ACA-mandated contraceptive coverage requirements. The Committee’s investigation found that over 30 contraceptive drugs were excluded from coverage or subject to cost-sharing by most health insurers. The Committee also found that the process for patients to request exceptions from cost-sharing restrictions and coverage restrictions can be burdensome, both for patients and providers. The Committee also found that insurers deny exception requests four to ten times out of ten. In fact, Senator Bernie Sanders, the chair of the Senate health committee, said earlier this year that women are still being charged for contraception, which is supposed to be provided free. Senator Sanders wrote to the Government Accountability Office to urge them to investigate plan conformity. He asked the GAO to examine how the Departments of Health and Human Services, Labor, and Treasury supervise adherence to the ACA contraceptive mandate and identify challenges these agencies encounter in enforcing and overseeing compliance.
The lack of enforcement partly stems from the complicated nature of fragmented federal authority over the contraceptive coverage mandate. The three agencies have segmented their jurisdiction, causing confusion and making it hard to hold plans accountable. For example, enrollees in self-funded plans, which are regulated by the Department of Labor, reported to the National Women’s Law Center’s CoverHer.org hotline that the Department was unable to resolve their complaints about coverage of the vaginal contraceptive ring.
Importantly, though, states also have the power to enforce state law and some of the ACA contraceptive coverage requirements. Given the lack of enforcement on the federal level and an incoming administration that has been hostile to both the Affordable Care Act and sexual and reproductive health care, it is critical that states start taking robust enforcement actions.
State Successes
Vermont, New York, and California are among the few states to have brought robust enforcement actions for violations of contraceptive coverage requirements.
In 2021,
Vermont’s Department of Financial Regulation received complaints concerning individuals being billed cost-sharing for contraceptive services in violation of both the Affordable Care Act and state law. The Department of Financial Regulation of Vermont received complaints in 2021 about individuals being charged cost-sharing for contraceptive services, which was in violation of both the Affordable Care Act and state law. The investigation revealed that, between 2017 and 2021 these three companies charged patients $1.5M for contraceptives they should have provided free of charge. 9,000 people were refunded for unjustified cost-sharing. The plans also agreed to report quarterly on their self-audits to the Department. These self-audits will continue until the plans show they are properly covering contraceptives.Interestingly, while the Department found that none of the insurers fully complied with the contraceptive coverage mandate, they found that this was generally the result of coding, differing interpretations of the mandate, and claims processing system limitations rather than intent to subvert the law. In June 2024,
New York
attorney general James obtained a $1,000,000 settlement from UnitedHealthcare of New York, Inc., for failing to provide free contraceptive cover in violation of New York’s Comprehensive Contraceptive Coverage Act. The CCCA goes further than federal requirements by requiring coverage without cost-sharing of all FDA approved contraceptives without a therapeutic equivalent.The Attorney General’s office investigated United after an initial complaint by a person who was improperly required to obtain prior authorization or step therapy for their contraception. In addition to the monetary settlement, United agreed to provide training to relevant staff involved in contraception coverage determinations to ensure compliance with New York State and federal laws and regulations.In August 2024, the
California
Department of Managed Health Care (DMHC) fined Blue Shield of California $250,000 for illegally charging hundreds of its members for contraceptive services in violation of California’s Contraceptive Equity law. DMHC’s initial investigation stemmed from a report they received from someone who was charged over $3,400 for their IUD removal.Moving Forward States will play a critical role in enforcing the right to contraception. They can immediately take a number of concrete steps to ensure implementation of contraceptive coverage laws.
States departments of insurance and relevant state agencies must:
Require health plans seeking approval in the state to document their adhere to contraceptive coverage requirements
Periodically review health plan documents to ensure compliance with contraceptive coverage requirements
- Send guidance to remind health plans of their obligations and inform them of any new coverage requirements.
- Additionally, state agencies play a critical role in educating insurers and the public about contraceptive coverage requirements. KFF conducted a recent study that found that most women know that their health plans must cover the full cost of annual checkups (71%), and routine mammograms (73%) but that they are much less aware of the contraceptive coverage requirement (43%). If people are unaware of their rights, they cannot claim contraceptive coverage. State agencies should work with community advocates to educate the public about these coverage requirements. It is crucial that state agencies work in partnership with advocates to reach people where they are, especially those in the most underserved communities.Ch
- Finally, it is essential for states to facilitate greater collaboration between state departments of insurance, state attorneys general offices, health care providers, pharmacists, legislators, and advocates in order to be responsive and pursue meaningful enforcement. These stakeholders should create a streamlined system for reporting coverage violations so that patients and advocates can easily find it. In order to ensure that complaints are investigated quickly, state agencies should take strong enforcement actions. In order to meet the needs of everyone who needs equitable access to reproductive health care, we need more inclusive policy and research.
