The Affordable Care Act’s (ACA) contraceptive coverage mandate achieved a massive and historic expansion of contraceptive coverage. As of 2021, an estimated 61.4 million women had private insurance coverage of contraception without cost-sharing thanks to the ACA. And research shows that two-thirds of women using oral contraceptive pills and nearly three-quarters of women using the vaginal contraceptive ring are no longer paying out-of-pocket for these methods.[1]
However, the ACA’s coverage requirement for contraception and associated services without cost-sharing is not being fully met. Numerous reports detail insurer ACA violations by charging copays for contraception, denying coverage for clinical services associated with providing contraception (like pregnancy tests prior to IUD insertion, and ultrasounds related to contraceptive services), refusing to cover certain kinds of contraceptives, and failing to have a sufficiently accessible, expedient, or transparent exceptions process when a non-covered contraceptive is needed for medical necessity.
Lack of Enforcement
Following reports that patients were facing barriers to accessing contraception without cost-sharing, the House Oversight Committee in 2022 opened an investigation into contraceptive coverage for individuals enrolled in private health plans. The investigation found that insurers nationally are not complying with ACA-mandated requirements for contraceptive coverage. Specifically, the Committee’s investigation identified over 30 contraceptive products for which most health insurers and pharmacy benefit managers (PBMs) imposed cost-sharing requirements or coverage exclusions. Furthermore, the Committee found that the processes established for patients seeking exceptions to cost-sharing and coverage restrictions is often burdensome for both patients and providers. Moreover, the Committee found that insurers denied exception requests on average four or more times out of ten.
Despite this robust investigation, limited subsequent enforcement has taken place. In fact, earlier this year Senator Bernie Sanders, chair of the Senate’s health committee, stated that women were still wrongly being charged for contraception that is supposed to be free. Senator Sanders sent a letter to the Government Accountability Office (GAO) urging them to investigate plan compliance. He asked the GAO to examine how the Departments of Health and Human Services, Labor, and Treasury supervise adherence to the ACA contraceptive mandate and identify challenges these agencies encounter in enforcing and overseeing compliance.
The lack of enforcement partly stems from the complicated nature of fragmented federal authority over the contraceptive coverage mandate. The three agencies mentioned above have segmented jurisdiction over the requirement, sowing confusion and making it difficult to hold plans accountable. For example, enrollees in self-funded plans, which are regulated by the Department of Labor, reported to the National Women’s Law Center’s CoverHer.org hotline that the Department was unable to resolve their complaints about coverage of the vaginal contraceptive ring.
Importantly, though, states also have the power to enforce state law and some of the ACA contraceptive coverage requirements. Given the lack of enforcement on the federal level and an incoming administration that has been hostile to both the Affordable Care Act and sexual and reproductive health care, it is critical that states start taking robust enforcement actions.
State Successes
Vermont, New York, and California are among the few states to have brought robust enforcement actions for violations of contraceptive coverage requirements.
In 2021, Vermont’s Department of Financial Regulation received complaints concerning individuals being billed cost-sharing for contraceptive services in violation of both the Affordable Care Act and state law. Subsequently, the Department audited contraceptive claims from the state’s three biggest insurers (Blue Cross Blue Shield of Vermont, MVP Health Care, and Cigna Healthcare) going back to 2017. The investigation found that between 2017 and 2021, these three companies inappropriately charged patients $1.5 million for contraceptives that should have been provided without any out-of-pocket costs. As a result, 9,000 people received restitution for impermissible cost-sharing. Additionally, the plans agreed to conduct quarterly self-audits that are to be reported to the Department. These self-audits will continue until the plans show they are properly covering contraceptives.
Interestingly, while the Department found that none of the insurers fully complied with the contraceptive coverage mandate, they found that this was generally the result of coding, differing interpretations of the mandate, and claims processing system limitations rather than intent to subvert the law. Consequently, it is critical that state departments of insurance are vigilant in issuing billing guidance, sending letters informing plans of coverage requirements, and robustly reviewing plan documents to ensure adequate contraceptive coverage.
In June 2024, New York Attorney General James secured a $1 million settlement from UnitedHealthcare of New York, Inc. for failing to provide no-cost contraceptive coverage in violation of New York’s Comprehensive Contraceptive Coverage Act (CCCA). The CCCA goes further than federal requirements by requiring coverage without cost-sharing of all FDA approved contraceptives without a therapeutic equivalent.
The Attorney General’s office investigated United after an initial complaint by a person who was improperly required to obtain prior authorization or step therapy for their contraception. In addition to the monetary settlement, United agreed to provide training to relevant staff involved in contraception coverage determinations to ensure compliance with New York State and federal laws and regulations.
In August 2024, the California Department of Managed Health Care (DMHC) fined Blue Shield of California $250,000 for illegally charging hundreds of its members for contraceptive services in violation of California’s Contraceptive Equity law. DMHC’s initial investigation stemmed from a report they received from someone who was charged over $3,400 for their IUD removal.
Moving Forward
States will play a critical role in enforcing the right to contraception. They can immediately take a number of concrete steps to ensure implementation of contraceptive coverage laws.
States departments of insurance and relevant state agencies must:
- Require health plans seeking approval in the state to document their adhere to contraceptive coverage requirements
- Periodically review health plan documents to ensure compliance with contraceptive coverage requirements
- Send guidance to remind health plans of their obligations and inform them of any new coverage requirements.
Additionally, state agencies play a critical role in educating insurers and the public about contraceptive coverage requirements. A recent study by KFF found that while most women are aware that their health plan must cover the full costs of annual check-ups (71%) and routine mammograms (73%), significantly fewer are aware of contraceptive coverage requirements (only 43%). People cannot assert their right to contraceptive coverage if they are not aware they have such rights. Therefore state agencies should partner with community advocates to inform the public of these coverage requirements. It is crucial that state agencies work in partnership with advocates to reach people where they are, especially those in the most underserved communities.Ch
Finally, it is essential for states to facilitate greater collaboration between state departments of insurance, state attorneys general offices, health care providers, pharmacists, legislators, and advocates in order to be responsive and pursue meaningful enforcement. These stakeholders should work on creating a streamlined complaint system so that patients and advocates know where to report coverage violations. Subsequently, state agencies must investigate complaints swiftly and take robust enforcement action.
[1] Note: We employ “women” in limited instances when necessary to accurately reference legal terms or cisgender women-centered research. More inclusive policy and research is needed to better service the needs of all people who need equitable access to reproductive and sexual health care.
