Affordable Care Act Birth Control Coverage: New Guidance Lays Down The Law, But Enforcement Questionable

One of the major bragging points of Obamacare, the landmark legislation overhauling health insurance in the U.S., was that it guaranteed free birth control for women. Or at least, it was supposed to. After reports in April revealed widespread noncompliance, the Department of Health and Human Services issued new guidance Monday detailing precisely how health insurance companies have to cover preventative health care for women, including contraception, as required by the Affordable Care Act.

Women’s rights and health advocates applauded the guidance as a major improvement on existing policies. But it’s unclear if the measure will ensure that companies actually comply with the law. Experts questioned how effectively it could be enforced, especially because the regulation relies on women to be highly aware of and have the time and resources to demand the health care coverage to which they are entitled.

“I don’t think that these new regulations are a cure-all,” Carmel Shachar, an attorney at the Center for Health Law and Policy Innovation at Harvard University in Massachusetts, said. “There will still be women who find that their birth control of choice won’t be covered or do have cost-sharing,” she said, referring to when patients must pay out-of-pocket fees, such co-pays or deductibles. Still, she described the effect of the guidance as a positive step overall, saying, “It’s a real sign from HHS that they’re acknowledging that insurance companies are undermining the spirit of the law.”

The department said Monday that despite the Affordable Care Act’s requirement, insurance companies had not been covering contraceptive services as required, although insurers had said that previous requirements laid out by the government were far from clear. “Today’s guidance seeks to eliminate any ambiguity,” the department said in a statement. It clarified that insurance companies had to cover at least one form of all 18 categories of birth control approved by the Food and Drug Administration, including the ring, the patch and intrauterine devices, or IUDs.

In April, several reports, including by the National Women’s Law Center and the Kaiser Family Foundation, detailed the challenges women still faced getting full coverage for birth control, despite the Affordable Care Act’s requirement that insurance companies cover birth control without charging women extra. The reports found that insurers did not necessarily cover all forms of contraception, forced women to pay out of pocket for birth control or charged them for follow-up visits with doctors. For instance, a company might cover the pill, but not the ring, or it might cover a generic form of the pill but not a brand-name version that works better for a patient.

The Right Direction

The Obama’s administration guidance, however, made the requirements for contraceptive coverage absolutely explicit, giving patients and lawyers greater legal backing and therefore more say in their fight for contraception coverage, advocates and experts said.

“It should really benefit women,” Donna Barry, director of women’s health and rights at the Center for American Progress in Washington, D.C., said. With the guidance, doctors, not insurance companies, would have the final say over what kind of birth control a patient should have, she said. Barry also praised the guidance’s explicitness in requiring all 18 categories of birth control approved by the FDA, adding, “That was not clearly explained initially.”

The guidance also warns insurance companies that the government is paying attention to violations of the law. “It raps health insurers on the knuckles,” Claire Brindis, a professor at and director of the Institute for Health Policy Studies at the University of California, San Francisco, said.

What's more, covering birth control and related health care services actually saves insurance companies money. The annual cost of providing contraception amounted to about $26 per female enrollee, as one analysis in 2011 calculated, and when compared overall to the costs of a pregnancy, paying for contraception was far less expensive and did not increase costs for insurance companies, a 2012 analysis by the Department of Health and Human Services found.

Enforcement Woes

But while the new guidance lays down the law on paper, how effective it will be in practice remains to be seen. Insurance companies could still attempt to skirt the newly laid out requirements for coverage.

“The regulations were very clear that plans can continue to offer generics with lower cost-sharing and brand-name medications with some cost-sharing involved,” Claire Krusing, director of communications for America’s Health Insurance Plans, a lobbying group for private health insurers, said in an email.

Under the ACA, insurance companies that fail to meet certain requirements face penalties of up to $100 per day for every individual affected, but investigating potential violations also requires resources that the government doesn’t necessarily have, Barry said.

Others suggested that the government simply had different priorities and wouldn't go after companies violating the law. “Women’s health needs, around prevention, are a relatively low priority,” Brindis said. The federal government was far more focused on cases of fraud, and other 'big ticket' items,” she said, despite the consequences for women. “I think this really hurts women’s health, and it has a lot of implications for their life course,” she said..

Awareness Is Crucial

Some insurance companies could also use certain tactics to ensure customers pay fees out of pocket. For instance, in order for a woman to avoid paying extra for a particular brand of birth control, she might have to call the insurance company to get it approved. So a patient would have to be aware that getting approval can waive the fee, and she'd have to have the time and resources to follow up. Such a requirement could put women in situations where their birth control is covered only after a tedious battle involving angry phone calls and repeated letters to insurance companies.

“If women don’t know that they have the benefit, they don’t know that they’re being denied it,” said Gretchen Borchelt, vice president for health and reproductive rights at the National Women’s Law Center in Washington, D.C. “State and fed officials need to make sure when the plans are offered in the first place that they don’t have these kinds of problems in them.”

With legislation as complex as the Affordable Care Act, which in its condensed version is roughly 1,000 pages, these kinds of revisions and clarifications are inevitable, some said. “Part of the trickiness with the Affordable Care Act is it is a really big piece of regulation and it has a lot of moving parts,” Shachar said.