HHS Secretary Xavier Becerra Announces New Actions to Increase Contraceptive Care Coverage on 51st Anniversary of Roe v. Wade

HHS, alongside Departments of Labor and Treasury, issue new guidance to help group health plans and issuers comply with the requirements to cover contraception without cost-sharing

Secretary Becerra to group health plans and issuers: “People should have control over personal decisions about their own health, lives, and families. High-quality contraception improves health outcomes, advances economic stability, and promotes overall well-being”

Today, the U.S. Department of Health and Human Services (HHS) announced a series of new actions to protect and expand access to contraception. The actions come in support of President Biden’s Executive Order to consider actions to strengthen access to affordable, high-quality contraception and family planning services and at a time when women are facing more barriers than ever to reproductive health access in the wake of the Supreme Court’s decision to overturn Roe v. Wade.

In a letter to Medicare plans, health insurance issuers, and State Medicaid and CHIP programs about upholding their obligations under federal law, Secretary Becerra wrote: “From day one, the Biden-Harris Administration has made clear that women should have access to the healthcare they need, including contraception and other family planning services. I’m writing to reaffirm that access to reproductive healthcare is a core priority of the U.S. Department of Health and Human Services.”

HHS, along with the U.S. Departments of Labor and the Treasury (the Departments) also issued new Frequently Asked Questions (FAQs) on how plans and issuers can ensure compliance with the requirement under the Affordable Care Act to cover contraception without cost-sharing. Today’s updated FAQs outlined how plans and issuers can make sure they meet their contraception coverage obligations.  Specifically, the Departments announce a new pathway for plans and issuers to meet existing obligations under federal law by covering, at no cost, a broader range of FDA-approved contraceptive drugs and certain devices. This new guidance comes in response to reports that many plans and issuers continue to impose barriers to contraceptive coverage, such as requiring patients to satisfy step therapy protocols, imposing unduly burdensome administrative requirements, or requiring cost-sharing for services that are integral to the application of the preventive service provided.

HHS also made updates to the Medicare Part D formulary clinical review process for plan year 2024 to include additional birth control types, such as intramuscular long-acting contraceptives and to include intrauterine devices (IUDs) for subsequent plan years. These updates will help ensure that people with Medicare coverage have access to more covered types of birth control. CMS is also instructing local Medicare Administrative Contractors (MACs) to publish educational content making the public aware of the availability of IUD coverage for some conditions under Medicare Part B.

The Departments also continue to consider the comments received in response to a recent Request for Information regarding the coverage of preventive products available over-the-counter without cost sharing and without a prescription to determine if and what additional actions the Departments may take regarding such products.

A list of previous actions taken by HHS and the Biden-Harris Administration can be found within the January 2023 report on reproductive health care.

Read the Secretary’s full letter to health plans and issuers below:

To: Medicare Plans, Private Insurance Plans, and State Medicaid and CHIP Programs:

From day one, the Biden-Harris Administration has made clear that women should have access to the healthcare they need, including contraception and other family planning services. I’m writing to reaffirm that access to reproductive healthcare is a core priority of the U.S. Department of Health and Human Services (HHS) and to remind all stakeholders of the critical need to comply with existing standards of access to comprehensive, quality contraception—including through Medicaid, Medicare, and under the Affordable Care Act (ACA).

Consistent with President Biden’s Executive Order on Strengthening Access to Affordable, High-Quality Contraception and Family Planning Services, HHS has—and will continue—to take action to promote access to affordable contraception across all relevant programs. This work builds on the progress we have already made, including under the ACA, which made contraception available without cost-sharing to millions.

As part of our response to the President’s Executive Order, HHS, along with the Departments of Labor and the Treasury (the Departments), are issuing new Frequently Asked Questions (FAQs) that outline how group health plans and issuers of group and individual health insurance coverage can ensure compliance with the ACA’s requirement to cover contraception without cost-sharing, through strategies including covering all Food and Drug Administration (FDA) approved drugs and drug-led devices other than those for which there is a covered therapeutic equivalent. As a reminder, plans and issuers subject to the requirement to cover preventive services must provide the full range of FDA-approved, -cleared, or -granted contraceptives (including emergency contraception), effective family planning practices, and sterilization procedures to prevent unintended pregnancy and improve birth outcomes.

In addition to this new guidance, and as we have previously made clear, we will continue to call on group health plan sponsors and issuers to remove impermissible barriers and ensure individuals in your plans have access to the contraceptive coverage they need, as required under the law. It is more important than ever to ensure access to contraceptive coverage without cost- sharing, as afforded by the ACA.

I also want to remind State Medicaid programs and Medicaid managed care organizations covering family planning benefits of the obligation to include family planning services in the standard Medicaid benefit package for categorically needy full-benefit individuals of childbearing age and in alternative benefit plans. Through the ACA’s Medicaid expansion, Medicaid has also dramatically improved access to contraception and family planning and measurably improved pregnancy, birth, and postpartum health outcomes. But we know there is more work ahead to ensure that all Medicaid enrollees who want or need access to affordable contraception can obtain it.

Finally, we continue to take steps to improve contraception access through the Medicare program. HHS made updates to the Medicare Part D formulary clinical review process throughout 2023 for plan year 2024 to include additional birth control types (vaginal ring, subcutaneous, and intramuscular long acting) and to include intrauterine devices (IUDs) for subsequent plan years. These updates will help to ensure that people with Medicare coverage have access to more covered types of birth control. Additionally, HHS instructed local Medicare Administrative Contractors (MACs) to publish educational content making the public aware of IUD coverage for menstrual illnesses under Medicare Part B.

These steps are the latest by the Biden-Harris Administration that advance contraception and protect patient privacy. In addition:

• The Departments sent a letter to group health plan sponsors and health insurance issuers to remind them of their obligations under the ACA to cover contraception at no additional cost, in accordance with guidelines from the Health Resources and Services Administration (HRSA). The Centers for Medicare & Medicaid Services also sent a letter urging plans, issuers, and pharmacy benefit managers to ensure they are providing full coverage, without cost-sharing, of preventive services (such as contraceptive services), as required by federal law.

• The Departments issued guidance to reiterate that the ACA requires that most employer and individual health plans must generally provide coverage without cost-sharing for the full range of FDA-approved, -cleared, or -granted contraceptives (including emergency contraception), effective family planning practices, and sterilization procedures to prevent unintended pregnancy and improve birth outcomes.

• The Departments issued a Notice of Proposed Rulemaking to provide a new pathway for women to access contraceptives when their private health coverage is exempt from covering this benefit.

• The Office for Civil Rights issued a Notice of Proposed Rulemaking to strengthen privacy protections under the Health Insurance Portability and Accountability Act, by proposing to prohibit use and disclosure of protected health information potentially related to reproductive health by doctors, other healthcare providers, and health plans under certain circumstances.

• The Departments published a request for information regarding the coverage of over-the-counter preventive products without cost-sharing and without a prescription from a healthcare provider. The Departments are considering the comments received in response to that request to determine if and what additional actions the Departments may take regarding such products.

• FDA approved the Opill (norgestrel) tablet for nonprescription use to prevent pregnancy—the first daily oral contraceptive approved for use in the United States without a prescription.

People should have control over personal decisions about their own health, lives, and families. High-quality contraception improves health outcomes, advances economic stability, and promotes overall well-being. We continue to encourage plans and issuers to ensure they are complying with the law. Together, we will work to ensure that all Americans have access to the reproductive healthcare they need to live full and healthy lives.