Sens. Feinstein, Hassan, Colleagues Urge Biden Administration to Crack Down on Insurance Companies Illegally Denying Women Access to Birth Control

WASHINGTON, Feb. 17 -- Sen. Dianne Feinstein, D-California, issued the following news release:

Senator Dianne Feinstein (D-Calif.) joined Senator Maggie Hassan (D-N.H.) and a group of their colleagues in calling on the Biden administration to improve enforcement of the federal law that guarantees complete coverage of birth control for women who get their health insurance through the Affordable Care Act (ACA). Despite existing law, certain health insurers continue to deny women coverage for birth control and fail to provide coverage for alternative birth control methods when they're deemed medically necessary.

"Women across the country are watching as politicians and judges roll back reproductive health protections, compromising women's ability to make their own health care decisions and control their own destiny," wrote the senators in a letter to Health and Human Services Secretary Becerra, Labor Secretary Walsh and Treasury Secretary Yellen. "At the federal level, the Affordable Care Act (ACA) guaranteed women access to birth control with no out-of-pocket costs. The evidence for the public health benefits of this requirement is clear. Yet since the ACA's passage, certain insurers have not complied with this provision."

The senators continued, "The Department of Labor (DOL) recently released FAQs acknowledging the reports that some plans continue to deny coverage for birth control and fail to maintain an exceptions policy that allows women to access the best birth control method for their individual health needs. This notice was a good start. We are writing to request that the DOL and the Department of Health and Human Services (HHS) issue specific updated guidance and take the proposed enforcement measures to ensure that plans fully comply with birth control coverage requirements."

In addition to Senators Feinstein and Hassan, the letter was also signed by Senators Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio), Ed Markey (D-Mass.), Tammy Duckworth (D-Ill.), Chris Van Hollen (D-Md.), Richard Blumenthal (D-Conn.), Angus King (I-Maine), Tammy Baldwin (D-Wis.),Tina Smith (D-Minn.), Amy Klobuchar (D-Minn.), Bernie Sanders (I-Vt.), Chuck Schumer (D-N.Y.), Martin Heinrich (D-N.M.), Catherine Cortez Masto (D-Nev.), Kirsten Gillibrand (D-N.Y.), Ben Cardin (D-Md.), Cory Booker (D-N.J.), Jacky Rosen (D-Nev.), Jeanne Shaheen (D-N.H.), Jack Reed (D-R.I.), Alex Padilla (D-Calif.), Chris Murphy (D-Conn.), Debbie Stabenow (D-Mich.), Tim Kaine (D-Va.), Bob Menendez (D-N.J.), Jeff Merkley (D-Ore.), Mark Kelly (D-Ariz.), Ben Ray Lujan (D-N.M.), Michael Bennet (D-Colo.), John Hickenlooper (D-Colo.), Chris Coons (D-Del.) and Gary Peters (D-Mich.).

The senators' efforts are supported by the National Women's Law Center, NARAL, Planned Parenthood, National Family Planning and Reproductive Health Association, National Partnership for Women and Families, Center for Reproductive Rights, Power to Decide, National Health Law Program, ACOG, Coalition to Expand Contraception Access, Families USA, Ibis Reproductive Health, Upstream USA and Black Mamas Matter Alliance.

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Dear Secretary Becerra, Secretary Walsh, and Secretary Yellen,

People across the country are watching as politicians and judges roll back reproductive health protections, compromising their ability to make their own health care decisions and control their destinies. At the federal level, the Affordable Care Act (ACA) guarantees individuals access to birth control with no out-of-pocket costs. The evidence for the public health benefits of this requirement is clear. Yet since the ACA's passage, certain insurers have not complied with this provision.

The Department of Labor (DOL) recently released FAQs acknowledging the reports that some plans continue to deny coverage for birth control and fail to maintain an exceptions policy that allows patients to access the best birth control method for their individual health needs. /1 This notice was a good start. We are writing to request that the DOL, Department of Health and Human Services (HHS), and Department of Treasury (Treasury) issue specific updated guidance and take the proposed enforcement measures necessary to ensure that plans fully comply with birth control coverage requirements.

Under the ACA, health insurers must ensure that people have access to the full range of birth control approved by the Food and Drug Administration without co-payments, deductibles, or coinsurance. Under the current requirements, insurers may use limited reasonable medical management techniques to determine coverage. However, they must maintain an exceptions policy so that an enrollee can obtain a medically necessary form of birth control at no cost, even if the plan does not normally cover it. We appreciate that the Departments reiterated that this exceptions policy must be "easily accessible, transparent, and sufficiently expedient," and it "must defer to the determination of the attending provider."/2

As noted in the recent DOL FAQs, some health insurers reportedly engage in practices that violate the ACA's protections for birth control access./3 According to these reports, these insurance companies overrule provider recommendations without explanation, incorrectly state that no exceptions policy exists, and fail to provide an exceptions policy entirely. Ultimately, these actions make it harder for people to access medically necessary birth control and force them to pay out-of-pocket for services that they are legally entitled to receive cost-free.

We were heartened to see DOL acknowledge its responsibility to examine the reports of coverage denials. We encourage DOL, HHS, and Treasury to take steps to oversee plan compliance, including engaging in enforcement action against non-compliant plans. We also urge the Departments to issue additional guidance or rules compelling plans to establish a clear exceptions policy, including a standard form for medical providers to request a coverage exception. This guidance could also direct plans to include information on their exceptions policy in enrollee materials, such as plan documents, formularies, and websites. Additionally, to ensure that plans comply with the ACA's birth control coverage requirement, the administration can evaluate plans for the presence and execution of their exceptions policies.

DOL's recent action was an essential first move. We look forward to seeing more from HHS, DOL, and Treasury as they respond to these reported violations and hold non-compliant insurers accountable, ensuring that exceptions policies are put in place. We ask that you respond to this letter by March 30 with a plan and timeline for issuing new guidance and developing enforcement procedures.

At this critical moment for reproductive freedom, we look forward to working with the administration to ensure that everyone can access to the reproductive rights they have been promised.

View co-signers at https://www.feinstein.senate.gov/public/_cache/files/9/7/97016e20-9baa-452c-a4fa-bbdd0d0fb2c8/1428E66BFB6920109231C7A14A8FBDEC.aca-birth-control-coverage-letter.pdf

Footnotes:

1/ U.S. Department of Labor. "FAQs About Affordable Care Act Implementation Part 51, Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Act Implementation." January 10, 2022. https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-51.pdf.

2/ U.S. Department of Labor. "FAQs About Affordable Care Act Implementation (Part XXVI)." May 11, 2015. www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-xxvi.pdf.

3/ National Women's Law Center. "Access to Birth Control Without Out-of-Pocket Costs: Improving and Expanding the Affordable Care Act Contraceptive Coverage Requirement." November 2021. https://nwlc.org/wp-content/uploads/2021/11/final_Long_nwlc_2021_BC_AffordCareAct-003.pdf; National Women's Law Center. "The Biden Administration Must Ensure the Affordable Care Act Contraceptive Coverage Requirement Is Working for All." October 2021. https://nwlc.org/wp-content/uploads/2021/10/NWLC_BC_AffordCareAct-Oct_2021.pdf; National Women's Law Center. "Exception Policies: Advocating for No-Cost Coverage of Noncovered Contraceptives." March 2021. https://nwlc.org/wp-content/uploads/2021/03/Exceptions-Guide.pdf; National Women's Law Center. "CoverHer Impact Report." 2018. https://nwlc.org/wp-content/uploads/2018/04/CoverHer-Impact-Report-April-2018-FINAL.pdf; National Women's Law Center. "The Affordable Care Act's Birth Control Benefit: Progress on Implementation and Continuing Challenges." July 2016. https://nwlc.org/wp-content/uploads/2016/07/The-ACAs-BC-Benefit-Report.pdf.