ACA FAQs Issued on Preventive Services Requirements for Contraceptive Coverage

On July 28, 2022, the DOL, IRS and Department of Treasury jointly issued Part 54, FAQs About Affordable Care Act Implementation. The newly issued guidance includes 14 frequently asked questions related to coverage of preventive services, specifically women’s preventive services and contraception. As a reminder, the ACA requires non-grandfathered group health plans to provide coverage for certain preventive care services with no cost-sharing for participants. Please note that male sterilization is not considered preventive care for this purpose.

The preventive services requirement includes coverage for items and services that are integral to the preventive service, regardless of whether the item or service is billed separately. For example, previous guidance provided that plans must cover the cost of polyp removal and anesthesia without cost-sharing when connected with a preventive screening colonoscopy. Similarly, the new guidance clarifies that anesthesia must be provided without cost-sharing when in connection with a tubal ligation and a pregnancy test when in connection with an insertion of an intrauterine device, as these are preventive services under the ACA.

Plans must also cover without cost-sharing any contraceptive services and FDA-approved, cleared, or granted contraceptive products that a participant and their healthcare provider have determined to be medically appropriate for the participant. The requirement applies even if the service or product is recently approved, cleared, or granted by the FDA and does not fit into one of the previously identified 17 categories of FDA-approved contraceptive methods. If there are multiple substantially similar services or products, the plan may use reasonable medical management techniques and cover only one.

The following are considered by the departments to be unreasonable medical management techniques:

• Denying coverage for all or particular brand name contraceptives, even after the participant’s healthcare provider determines and communicates to the plan that a particular service or FDA-approved contraceptive product is medically necessary with respect to that participant.
• Requiring individuals to fail first using numerous other services or FDA-approved contraceptive products within the same category of contraception before the plan or issuer will approve coverage for the service or product that is medically necessary for the individual, as determined by the participant’s healthcare provider.
• Imposing an age limit on contraceptive coverage instead of providing these benefits to all individuals with reproductive capacity.

This coverage must also include the clinical services, including patient education and counseling, needed to provide the contraceptive product or service. Similarly, in relation to fertility awareness-based methods, lactation and amenorrhea, instruction must be included in coverage.

The guidance clarifies that plans and insurers must cover emergency contraception (levonorgestrel and ulipristal acetate) and over-the-counter (OTC) products when the product is prescribed for an individual by their healthcare provider, including an advanced prescription. Plans and insurers are further encouraged to cover these products even when they are not prescribed.

An HSA, health FSA or HRA may be used to reimburse an individual for the cost (or portion of the cost) incurred for OTC contraception to the extent that cost is not paid or reimbursed by another plan or coverage. Thus, if the cost of OTC contraception is not covered by the plan, the cost may be reimbursed from the HSA, health FSA or HRA.

Importantly, in light of the Supreme Court’s Dobbs decision and the discussion involving ERISA preemption, the guidance states that federal law (specifically PHS Act section 2724(a) and ERISA section 731) preempts state law that prevents the application of PHS Act section 2713 (requiring coverage of preventive services). A state law is considered to prevent application if it makes it impossible for an insurer to comply with the federal requirements.

Employer plan sponsors, particularly those who sponsor a self-insured plan, should familiarize themselves with the new guidance to make sure that their plan’s design complies.

ACA FAQs Part 54 »