In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, there have been two notable federal efforts to establish or reaffirm access to women’s reproductive healthcare services. First, the Departments of Health and Human Services, Labor and the Treasury (collectively, the Departments) released a letter at the end of June reiterating health plan responsibilities surrounding access to contraceptives under the ACA. Then, on July 8, President Biden signed an executive order intended to promote the protection of access to reproductive healthcare.
Interdepartmental Letter on Access to Contraceptives
The letter that the Departments recently released reminds insurance carriers and employers with non-grandfathered group health plans of their obligations under the ACA’s preventive service requirements to cover, at no cost to the participant, at least one form of contraception within each of the 18 contraceptive categories that the U.S. Food and Drug Administration (FDA) has identified. This requirement for cost-free coverage also applies when an individual’s medical provider recommends an FDA-approved, cleared or granted contraceptive product that does not fall within one of the identified categories.
The Departments have included two additional “reminders” in their letter:
- That carriers and group health plan sponsors are required to cover clinical services needed to supply contraception, including patient education and counseling; and
- That employers and insurance carriers must establish “an easily accessible, transparent and sufficiently expedient exceptions process” to ensure participants can receive cost-free coverage for any contraceptive product their healthcare provider deems “medically appropriate” for them, even if that product is not covered under the plan.
The guidance states that it is being released because regulators are concerned that plan sponsors and carriers are not currently complying with the ACA’s coverage requirements. This is a strong signal that enforcement action in this area is forthcoming and that now is the time to make any necessary adjustment to comply with these rules.
President Biden’s Executive Order on Reproductive Healthcare
As noted above, on July 8, 2022, President Biden signed an Executive Order regarding access to reproductive healthcare services in direct response to the Supreme Court’s Dobbs ruling. There are three main components to this order, which are together designed to promote federal protections for those who seek or provide abortions and other reproductive healthcare services.
Among other things, the executive order directs HHS to: (1) protect access to prescription-based abortions, (2) ensure that pregnant women and those experiencing pregnancy loss have access to all rights provided for under the Emergency Medical Treatment and Labor Act, and (3) protect access to contraception.
The Biden administration’s position on this issue makes it clear that there will be forthcoming legal battles resulting from conflict between state and federal rules. Plan sponsors will need to maintain awareness of developments in both state and federal law over the next several years to ensure they remain in compliance.