The Department of Labor, Department of Health and Human Services, and the IRS (the “Agencies” ) have issued Frequently Asked Questions 54 (“FAQs”) regarding the contraception coverage requirements for group health plans under the Affordable Care Act (“ACA”).
Background The ACA requires non-grandfathered group health plans and individual insurance to cover certain preventive services without cost sharing. “Preventive services” has been defined, in general terms, as care designed to identify or prevent illness, injury, or a medical condition, as opposed to care designed to treat an existing illness, injury, or condition.
Preventive services include:
- Items and services given an “A” or “B” rating by the United States Preventive Services Task Force (“USPSTF”) with respect to the individual involved;
- Immunizations, as recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control;
- Children’s preventive care and screenings as recommended by Health Resources and Services Administration (“HRSA”);
- Women’s preventive care and screenings as recommended by HRSA. (The HRSA guidelines specifically require coverage of all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity, as prescribed by a health care provider.)
If the relevant preventive services recommendation or guideline does not specify the frequency, method, treatment, or setting for a recommended preventive service, the group health plan is allowed to use reasonable medical management techniques to determine coverage limitations.
FAQ 54. The information in the FAQ includes the following:
- The ACA requirement that plans must cover, without cost sharing, items and services that are integral to the furnishing of a recommended preventive service also applies to coverage of contraceptive services under the HRSA-Supported Guidelines, including coverage for anesthesia for a tubal ligation procedure or pregnancy tests needed before provision of certain forms of contraceptives, such as an intrauterine device, regardless of whether the items and services are billed separately.
- For contraceptive services or FDA-approved, cleared, or granted contraceptive products that are not included in a category described in the HRSA-Supported Guidelines, plans and issuers may use reasonable medical management techniques,
- The 2021 HRSA-Supported Guidelines include “screening, education, counseling, and provision of contraceptives (including in the immediate postpartum period). Counseling and education under the 2021 HRSA-Supported Guidelines includes instruction in fertility awareness-based methods, including lactation amenorrhea.
- Plans and insurers must cover, without cost sharing, emergency contraception, including OTC products, when the product is prescribed for an individual by an attending provider.
- An HSA, health FSA, or HRA can reimburse an individual for the cost (or portion of the cost) incurred for OTC contraception to the extent that cost is not paid or reimbursed by another plan or coverage; and
- State law will be preempted to the extent it prevents the application of the ACA rules for preventive services.
FAQ 54 can be found at: https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-centeraca-part-54.pdf (dol.gov)