DEM WOMEN'S CAUCUS LEADS HOUSE AND SENATE DEMOCRATS IN DEMANDING HEALTH INSURERS FULLY COVER BIRTH CONTROL, AS REQUIRED BY THE ACA

WASHINGTON, Feb. 23 -- Rep. Yvette Clarke, D-New York, issued the following news release on Feb. 22, 2024:

Today, Congresswoman Yvette D. Clarke (NY-09) joined Democratic Women's Caucus (DWC) Chair Lois Frankel (FL-22), DWC Policy Co-Chairs Ayanna Pressley (MA-7) and Kathy Manning (NC-6), and Pro-Choice Caucus Contraception & Family Planning Task Force Chair Judy Chu (CA-28), along with Senators Elizabeth Warren (D-MA), Catherine Cortez Masto (D-NV), and Tina Smith (D-MN), and over 150 House and Senate Democratic colleagues in urging health insurers to fully comply with the Affordable Care Act (ACA) contraception coverage requirement. Specifically, the members urged insurers to adopt a "therapeutic equivalence standard" ensuring coverage--without cost sharing--of every FDA-approved birth control product that does not have a therapeutic equivalent (generic). The letter comes after years of systemic noncompliance by insurance plans, forcing women to pay out of pocket or face administrative red tape to access the birth control that works best for them.

"We write to express our concerns that your members are not complying with the Affordable Care Act contraception coverage requirement, and to urge them to consider immediate adoption of the therapeutic equivalence standard outlined by the Departments of Health and Human Services, Labor, and Treasury on January 22, 2024," wrote the lawmakers in a letter to America's Health Insurance Plans (AHIP)--whose membership includes major health insurers across the country--and UnitedHealth Group.

Despite the ACA's protections, the members outlined how multiple investigations--including by the House Oversight Committee, "have revealed that plans routinely violate the ACA by refusing to cover certain products, imposing administrative hurdles like prior authorizations and step therapy (fail first protocols), and requiring patient cost-sharing."

In response to these violations, the Biden Administration recently released additional guidance, outlining a standard that requires coverage without cost-sharing of every FDA-approved product that does not have a therapeutic equivalent (generic). To ensure women can access the birth control they need, the members urged insurance plans to immediately adopt this standard and comply with the law.

The letter has been endorsed by: Planned Parenthood Federations of America, Reproductive Freedom for All (formerly NARAL), Power to Decide, and Physicians for Reproductive Health.

"Under the Affordable Care Act (ACA), comprehensive coverage of birth control is not a suggestion, it's the law. Yet, insurance companies are blatantly disregarding this vital provision," said Gretchen Borchelt, Vice President for Reproductive Rights & Health at the National Women's Law Center. "We support these House and Senate champions for reproductive health in calling for immediate action. It's time for health insurers to uphold their legal obligation and ensure coverage of birth control guaranteed under the ACA. We urge them to adopt the therapeutic equivalence standard outlined by the Departments of Health and Human Services, Labor, and Treasury."

"The new guidance from the Biden-Harris Administration is urgently needed. We thank congressional champions for their continued vigilance in pushing for plans' compliance with the ACA contraceptive coverage requirement and holding those in violation accountable," said Power to Decide CEO, Raegan McDonald-Mosley, MD, MPH. "As a practicing OB-GYN, I know how frustrating it is for my patients to not have the contraceptive they need covered by the health insurance they pay for. Finding a birth control method that works for you takes time, and having a method denied by insurance is a significant barrier that often prevents people from getting the contraception they need."

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February 21, 2024

To: Mr. Mike Tuffi, President & CEO, America's Health Insurance Plans, 601 Pennsylvania Avenue, NW, South Building, Suite 500, Washington, D.C. 20004

Dear Mr. Tuffin:

We write to express our concerns that your members are not complying with the Affordable Care Act (ACA) contraception coverage requirement, and to urge them to consider immediate adoption of the therapeutic equivalence standard outlined by the Departments of Health and Human Services, Labor, and Treasury (the Departments) on January 22, 2024 ("FAQs About Affordable Care Act Implementation Part 64").

As you know, the ACA requires plans to fully cover all Food and Drug Administration (FDA)-approved, -cleared, or -granted contraceptive products. Prior guidance clarified that plans must cover at least one form of each contraceptive method without cost-sharing, and also required an easily accessible, unburdensome, and transparent exceptions process when a plan does not cover the specific product a patient needs.

Despite repeated clarification of these requirements from the Departments, multiple investigations--including by the House Oversight Committee--have revealed that plans routinely violate the ACA by refusing to cover certain products, imposing administrative hurdles like prior authorizations and step therapy (fail first protocols), and requiring patient cost-sharing.

In response to this systemic noncompliance, the Departments published additional guidance on January 22, 2024, outlining a standard that requires coverage without cost-sharing of every FDA-approved product that does not have a therapeutic equivalent. If a therapeutic equivalent exists, a plan may choose to cover only one therapeutically-equivalent product, so long as it maintains an acceptable exceptions process in the case that a patient needs a specific product. The Departments will generally consider that plans adopting this standard are in compliance with federal law, essentially establishing a "safe harbor" for issuers. In addition, the use of an exceptions process should be far less frequent, a process which we believe has never worked for consumers and providers and continues to be a significant compliance problem for payers.

We urge your plans to immediately consider adopting the therapeutic equivalence standard to ensure patients' access to the contraceptive products they need, as required by the ACA. We request answers to the following questions by March 21, 2024:

1. Will your plans be adopting the therapeutic equivalence standard and in what timeframe?

2. For plans that decline to adopt the therapeutic equivalence standard, how will they ensure compliance with the ACA contraception coverage requirement and in what timeframe?

3. Do any of your plans employ management techniques that the Departments have explicitly listed as in violation of the ACA and how will you eliminate these barriers?

4. Do all of your plans have a publicly-available exceptions process in place and where are they available on their websites?

We thank you for your attention to these issues, and we look forward to your response. Responses may be addressed to the attention of Julia Bartusek, Policy Director and Interim Executive Director of the Democratic Women's Caucus, at [email protected].

View letter co-signers here: https://democraticwomenscaucus.house.gov/sites/evo-subsites/democraticwomenscaucus.house.gov/files/evo-media-document/DWC%20-%20Contraceptive%20Coverage%20Letter%20to%20Plans%20-%20FINAL_-compressed.pdf

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Original text here: https://clarke.house.gov/dem-womens-caucus-leads-house-and-senate-democrats-in-demanding-health-insurers-fully-cover-birth-control-as-required-by-the-aca/