Amid Top Companies Illegally Delaying or Denying Patients Insurance Coverage for Birth Control, Sens. Murray, Wyden, Casey, Hassan Demand Answers

WASHINGTON, May 4 -- Sen. Patty Murray, D-Washington, chair of the Senate Health, Education, Labor and Pensions Committee, issued the following news release on May 3, 2022:

U.S. Senators Patty Murray (D-WA), Chair of the Senate Health, Education, Labor, and Pensions (HELP) Committee, Ron Wyden (D-OR), Chair of the Senate Finance Committee, Bob Casey (D-PA), Chair of the Special Committee on Aging, and Maggie Hassan (D-NH) demanded answers from CVS Caremark, OptumRx, and Express Scripts--the nation's largest pharmacy benefits managers (PBMs), which make key coverage decisions about 80% of the prescriptions filled in the U.S.--amid ongoing reports that they are illegally delaying or denying patient insurance coverage for birth control.

"We have heard numerous accounts of PBMs requiring prior authorization, denying claims, or asking patients to try multiple forms of contraceptives before approving them for the product recommended by their health care provider. These opaque and burdensome practices run counter to the goals of the ACA--ensuring access to prescription birth control that is free at the point-of-sale," wrote the Senators.

The Affordable Care Act (ACA) requires that companies fully cover patients' birth control with no out-of-pocket costs or extra steps, but despite these protections, top companies continue to force patients to jump through harmful, unnecessary hoops or pay out-of-pocket to get the birth control they need to stay healthy. In their letters to CVS Caremark, OptumRx, and Express Scripts, the Senators called on the PBMs to fully cover patients' birth control and clearly detail their policies related to contraception coverage.

"Patients should not have to jump through burdensome hoops or pay extra just to get the birth control they need to stay healthy and plan a family on their own terms. We therefore ask you ensure your policies are compliant with the law and provide the requested information so we may better understand the scope, evolution, and impact of your policies."

Recent reports have made clear that despite the ACA's clear contraception coverage requirement, some insurers and the PBMs they hire to manage drug benefits on their behalf are forcing patients to pay extra for birth control or jump through unnecessary and harmful hoops to get their chosen birth control method covered. In some cases, patients have been asked to demonstrate they have failed with as many as five different birth control options before they can get their birth control covered.

The Senators' letters to the PBMs come following efforts by Senators Murray and Wyden (https://www.help.senate.gov/chair/newsroom/press/amid-reports-that-insurers-are-flouting-aca-contraception-coverage-protections-senators-murray-wyden-urge-biden-administration-to-protect-access-to-birth-control-) and Senator Hassan (https://www.hassan.senate.gov/news/in-the-news/senator-hassan-calls-on-the-administration-to-improve-enforcement-of-complete-coverage-of-birth-control-under-aca) urging the Biden administration to make clear to insurers their obligation to fully cover birth control with no out-of-pocket costs--and to take action against those failing to comply. In January, the Biden administration issued (https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-51.pdf) guidance (https://www.hrsa.gov/womens-guidelines/index.html) clarifying that insurers must cover all FDA approved, cleared, or granted birth control that are determined by a patient's provider to be medically appropriate.

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To: Alan Lotvin, M.D., Executive Vice President, CVS Health President, CVS Caremark, 1 CVS Drive, Woonsocket, RI 02895

Dear Dr. Lotvin:

We continue to hear from patients who are experiencing delays and denials for insurance coverage of birth control products they and their health care providers determine are most appropriate for them. The Affordable Care Act (ACA) requires all group health plans and all issuers of group or individual health insurance coverage to cover women's preventive services, including the full range of FDA approved, cleared, and granted female-controlled contraceptives, without cost-sharing. Thanks to this requirement, over 64 million women have insurance coverage that includes contraception without cost-sharing. However, over the past nine years, thousands of women have reported challenges obtaining covered contraceptive products as guaranteed by the ACA. As one of the largest pharmacy benefits managers (PBMs) in the country, CVS Caremark's policies regarding claims for birth control products directly affect patients' ability to get the birth control they need. Patients should not have to jump through burdensome hoops or pay extra just to get the birth control they need to stay healthy and plan a family on their own terms. We therefore ask you ensure your policies are compliant with the law and provide the requested information so we may better understand the scope, evolution, and impact of your policies.

Following reports that insurers were unlawfully denying access to birth control, the U.S. Department of Labor, Department of Health and Human Services, and Department of the Treasury (the Departments) recently released guidance clarifying that insurers must cover all FDA approved, cleared, or granted contraceptive products that are determined by an individual's provider to be medically appropriate. Additionally, the Health Resources and Services Administration (HRSA) updated the Women's Preventive Services Guidelines for plan years starting in 2023, to reinforce the importance of covering the full range of FDA approved, cleared, or granted contraceptives as a part of contraceptive care.

Federal law clearly requires group health plans and health insurance coverage to cover the full range of FDA approved, cleared, or granted contraception. As PBMs typically manage the drug benefit for group health plans and health insurance coverage, policies and practices put in place by PBMs on behalf of those plans or coverage determine coverage decisions for patients. We have heard numerous accounts of PBMs requiring prior authorization, denying claims, or asking patients to try multiple forms of contraceptives before approving them for the product recommended by their health care provider. These opaque and burdensome practices run counter to the goals of the ACA - ensuring access to prescription birth control that is free at the point-of-sale.

We write to seek more information on CVS Caremark's practices around contraceptive coverage and ensure you are compliant with the law.

Please respond to the following questions and requests for information no later than May 16, 2022:

1. How have CVS Caremark's coverage and medical management policies around contraceptive products changed since the issuance of the Departments' guidance on January 10, 2022?

a. Please provide copies of the current coverage and medical management policies for contraceptives.

b. Please provide past iterations of such policies dating back to March 23, 2010.

2. What percentage of claims for contraceptive products have had prior authorization requirements imposed on them?

3. What percentage of claims for contraceptive products are approved without cost-sharing?

4. What percentage of claims for contraceptive products are approved with cost-sharing?

5. What percentage of claims for contraceptive products are denied?

6. How many requests for coverage of a contraceptive product on the basis of medical necessity has CVS Caremark received over the last five annual claim periods? How many of those were approved?

7. Please provide any documentation explaining the circumstances in which providers are required to use an exceptions process to request coverage for a contraceptive product on the basis of medical necessity. Please also provide an explanation of the materials providers must provide in order to demonstrate that a contraceptive product is medically necessary.

8. Does CVS Caremark use medical management techniques within a specified method of contraception? If so:

a. Please describe the techniques used and provide any standard exception forms and instructions that are used.

b. What review does CVS Caremark conduct to determine whether the exceptions process is burdensome for patients and their providers?

Please contact Elizabeth Letter (Elizabeth_Letter@help.senate.gov) with Senator Murray's staff if you

have any contacts about this request. Thank you in advance for your prompt response.

Sincerely,