Departments to Plans: Contraceptive Care Coverage Under the ACA is Required

On July 28, 2022, the U.S. Dept. of Health and Human Servies, the Dept. of Labor (DOL), and the Dept. of Labor and Treasury, collectively, the “Departments” issued guidance (FAQ ACA Part 54) for health plans regarding contraceptive coverage.

This comes on the heels of President Biden’s recent Executive Order ordering the Departments to formulate plans to protect access to reproductive rights. And this Order follows the Dobbs decision, wherein the U.S. Supreme Court removed the Constitutional right to abortion services, giving regulation of it back to the States.

The FAQ reminds applicable plans and health insurance issuers that, under the Public Health Services Act, Section 2713 (AKA, the ACA), contraceptive coverage is a requirement.

In part, HHS Secretary Xavier Becerra states:

• Under the ACA, you have the right to free birth control — no matter what state you live in. With abortion care under attack, it is critical that we ensure birth control is accessible nationwide, and that employers and insurers follow the law and provide coverage for it with no additional cost.

Given recent complaints from women about barriers to secure such treatment, the Departments clarify their intent to enforce regulations supporting access. Restricting access to federally mandated coverage could involve payment of fines and penalties by applicable plans and issuers.

Plan sponsors take note: the focus on reproductive access is unlikely to wane. Review plan documents, coverage details, and required notices. If changes are made to coverage, be sure to follow ERISA’s reporting requirements including updates to the plan documents, SPDs, SMMs (as applicable), and then clearly and simply communicate such changes to plan participants.