HHS, DOL, And Treasury Give Employer-Sponsored Health Plans Another Warning On Providing Contraceptive Coverage

Published date05 August 2022
Subject MatterEmployment and HR, Food, Drugs, Healthcare, Life Sciences, Health & Safety, Employee Benefits & Compensation
Law FirmOgletree, Deakins, Nash, Smoak & Stewart
AuthorMr Timothy Stanton and Jessica Kuester

Employers can't say they weren't warned.

For the second time in six months, frequently asked question (FAQ) guidance from federal regulators is calling attention to the requirement that employer-sponsored health plans provide coverage for women, without any cost sharing, for the full range of contraceptive methods approved by the U.S. Food and Drug Administration (FDA).

Despite FAQ guidance issued in January 2022, regulators from the U.S. departments of Labor, Health and Human Services, and the Treasury'the agency triumvirate responsible for regulating and enforcing the health-related benefits provisions of the Affordable Care Act (ACA)'say they are receiving continued reports of individuals experiencing difficulty in accessing contraceptive coverage without cost sharing.

Under section 2713 of the Public Health Service (PHS) Act, group health plans and health insurers are required to cover preventive care and screenings under guidelines issued by the Health Resources and Services Administration (HRSA). PHS Act section 2713, originally added by the ACA in 2010, was one of the few provisions in the ACA to take effect upon enactment. The HRSA guidelines currently in effect were issued in 2019 and require broad coverage of contraceptive care and services for women. Updated guidelines issued in late 2021 will take effect on January 1, 2023, for calendar year plans.

As the new FAQ guidance reminds employers, violators of the preventive care coverage requirements may be subject to the $100 per person per day excise tax under section 4980D of the Internal Revenue Code or a civil monetary penalty under PHS Act section 2723. The guidance states that the departments "will take enforcement action as warranted."

Here are some of the key takeaways for employers from the new FAQ guidance, which was issued on July 28, 2022.

Emergency Contraception

Employer-sponsored plans are required to cover both types of emergency contraception that are listed in the HRSA guidelines (levonorgestrel and ulipristal acetate) if prescribed by a medical provider. Plans must cover the medications even if they are available over the counter when prescribed. Plans are also required to cover these products without cost sharing when they are prescribed for advance provision. (Question & Answer [Q&A] 5)

Medical Management

In limited cases, a plan may use "reasonable" medical management techniques for contraceptives not included in the categories used by the HRSA guidelines. Only if "multiple...

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