On October 4, 2023, the Departments of Treasury, Labor, and Health and Human Services issued a Request for Information (RFI) regarding the potential benefits of requiring insurance coverage of over-the-counter (OTC) preventative items, including contraception, without cost-sharing and without a prescription. This RFI is an opportunity to eliminate barriers to contraceptive access and expand contraceptive equity.
The RFI recognizes that access to OTC contraception is crucial in the wake of the Dobbs decision, growing provider and contraceptive deserts, and the FDA’s recent approval of O-Pill. O-pill is the first daily oral hormonal contraceptive available in the U.S. without a prescription. The progestin only pill is expected to hit US markets in early 2024. Availability of an OTC contraceptive pill is a monumental step forward and brings the US in line with the recommendations of leading medical organizations and over 100 other countries that offer OTC hormonal birth control without a prescription. However, the National Health Law Program argues in our RFI response that for OTC hormonal contraceptives to be revolutionary they must be accessible to all people.
To that end, we encourage the Departments to:
- Issue guidance that ensures coverage is implemented and accessible for all people, regardless of income, insurance type or lack thereof, age, and other factors;
- Ensure that health plans and agencies provide seamless access and compressive coverage of all OTC contraceptives in as many locations as possible and without limiting medical management techniques;
- Disseminate clear information and education about OTC contraception coverage requirements to all stakeholders, especially in underserved communities; and
- Partner with the Centers for Medicare and Medicaid Services to issue FAQs requiring coverage of all OTC contraceptives without a prescription, including in Medicaid.
The Affordable Care Act, Medicaid, & OTC Contraception
NHeLP’s comments stress the Departments’ clear authority under the ACA’s preventive services provision to require certain health plans to cover OTC contraceptives without cost-sharing and without a prescription. The ACA requires coverage of certain preventive services, like contraception, without cost-sharing. And coverage of OTC contraception without a prescription aligns with the ACA’s intent to expand access to preventative services and improve health outcomes. Nonetheless existing federal guidance allows private health plans to require a prescription for OTC contraceptives as a condition of no-cost coverage. Similarly, OTC drugs are only covered under the federal Medicaid drug benefit when they are prescribed by an authorized prescriber.
Prescription requirements are a barrier to access that significantly reduce the potential advantages of OTC contraception. Requiring a prescription for OTC products defeats the purpose of moving a medication OTC. In fact, it reinstates the very barrier that OTC access sought to remedy. Therefore, NHeLP urges the Departments to issue new guidelines clarifying that health plans must cover OTC contraception without a prescription or cost-sharing, and waive the Medicaid prescription requirement for OTC contraceptives. Additionally, NHeLP encourages the Departments to provide strong oversight and enforcement of such requirements.
No-cost OTC Contraception Without a Prescription Would Improve Equity
NHeLP argues that for OTC contraception to be truly accessible to all individuals, the Departments must work to eliminate barriers to contraception that fall hardest on underserved populations. Underserved communities disproportionately face financial, logistical, and interpersonal barriers to care. Black, Indigenous, and people of color (BIPOC), people with disabilities, LGBTQ+ individuals, those living in contraceptive deserts, young people, and individuals with lower incomes suffer the cost, travel, and time burden of prescription requirements most acutely and are disproportionately impacted by cost-sharing requirements. These negative effects are further compounded for individuals living at the intersection of these identities.
Because underserved populations experience systemic barriers to contraception, there is strong interest among these communities in OTC contraception. For example, in a recent survey of BIPOC individuals, 45% of respondents reported experiencing at least one challenge accessing contraception in the past year, and 67% said they would likely use OTC oral contraceptives. Additionally, a recent survey of young people found that 88% of respondents experienced at least one barrier accessing contraception.
To eliminate barriers for underserved communities, NHeLP urges the Departments to issue guidance that ensures OTC contraceptives are accessible free of bias and regardless of location or source of care with no out-of-pocket cost. Additionally, NHeLP encouraged the Departments to expand scope of coverage to include an extended supply, no limits on brands, no age restrictions, or management techniques.
Access to contraception is critical to ensuring bodily autonomy. Contraception improves overall health, lowers maternal mortality, improves infant health, and increases economic security for families. NHeLP implores the Departments to ensure these benefits are not reserved for only those who have the financial means to access contraception. Failure to eliminate prescription requirements, associated costs, and medical management barriers would relegate a huge milestone in reproductive health care to only certain people, further deepening contraceptive inequities.
