HHS, DOL, and Treasury Issue Guidance Regarding Birth Control Coverage

Today, following President Biden’s Executive Order on ensuring access to reproductive health care, the U.S. Department of Health and Human Services (HHS), alongside the Departments of Labor and of the Treasury (Departments), took action to clarify protections for birth control coverage under the Affordable Care Act (ACA). Under the ACA, most private health plans are required to provide birth control and family planning counseling at no additional cost.

The guidance comes on the heels of HHS’ work to bolster family planning services, including access to emergency contraceptives. According to a report released by HHS, in 2020, 58 million women benefited from the ACA’s preventive services and birth control coverage, which has saved billions of dollars in out-of-pocket spending on contraceptives since the ACA was passed. In response to increasing complaints from women and covered dependents about not receiving this coverage, the Departments issued this guidance to remind plans and issuers of the ACA’s contraceptive coverage requirements and emphasize the Departments’ commitment to enforcement. Today’s announcement is part of a comprehensive effort by the Biden-Harris Administration to protect women’s access to reproductive health care, while reproductive rights are under assault in many states across the country.

“Under the ACA, you have the right to free birth control — no matter what state you live in,” said HHS Secretary Xavier Becerra. “With abortion care under attack, it is critical that we ensure birth control is accessible nationwide, and that employers and insurers follow the law and provide coverage for it with no additional cost. Family planning, one of the greatest public health achievements of the 20th century, is key to better health outcomes. We will do all we can at HHS to protect family planning and all other forms of reproductive health care, including abortion care, because it is essential health care.”

“Today’s guidance makes clear that the law requires group health plans and health insurance issuers to provide contraceptive coverage — including emergency contraception — at no cost to participants,” said Labor Secretary Marty Walsh. “We have heard troubling reports that plans and issuers are not following the law. We expect them to remove impermissible barriers and ensure individuals have access to the contraceptive coverage they need. If plans and issuers are not complying with the law, we will take enforcement action to ensure that participants receive this coverage, again with no cost sharing.”

“To the American people, including those who are concerned that their access to care is at risk, I say this: we stand firmly with you, and the Centers for Medicare & Medicaid Services (CMS) will do everything we can to ensure that you have access to the full range of reproductive health care you need,” said CMS Administrator Chiquita Brooks-LaSure. “Today, we are taking another important step by reminding employer-sponsored health plans and health insurance issuers of their obligations to provide the full range of contraceptive care to their enrollees.”

The ACA guarantees coverage of women’s preventive services, including free birth control and contraceptive counseling, for all individuals and covered dependents with reproductive capacity. This includes, but is not limited to:

• Hormonal methods, like birth control pills and vaginal rings.
• Implanted devices, like intrauterine devices (IUDs).
• Emergency contraception, like Plan B® and ella®.
• Barrier methods, like diaphragms and sponges.
• Patient education and counseling.
• Sterilization procedures.
• Any additional contraceptives approved, granted, or cleared by the FDA.

Last month, HHS Secretary Xavier Becerra, Labor Secretary Marty Walsh, and Treasury Secretary Janet L. Yellen sent a letter to health insurers and employer health plan organizations, and the Departments convened a meeting with them, calling on the industry to commit to meeting their obligations to provide coverage for contraceptive services at no cost as required by the ACA.

This guidance is part of the Biden-Harris Administration’s commitment to ensuring accessible reproductive health care. Below is a list of actions HHS has taken in the days following the Supreme Court’s ruling to ensure access to reproductive health care:

• Launched the ReproductiveRights.gov public awareness website, which includes a know-your-rights patient fact sheet.
• Met with Maine Governor Janet Mills, Michigan Governor Gretchen Whitmer, and Oregon Governor Kate Brown, as well as state attorneys general (in Colorado, Minnesota, New York, and Oregon), to discuss state-specific concerns.
• Convened a meeting with health insurers and sent them a letter, calling on the industry to commit to meeting their obligations to provide coverage for contraceptive items and services at no cost as required by the ACA.
• Issued guidance to patients and providers that clarifies the extent to which federal law and regulations protect individuals’ private medical information when seeking abortion and other forms of reproductive health care, as well as when using health information apps on smartphones.
• Announced nearly $3 million in new funding to bolster training and technical assistance for the nationwide network of Title X family planning providers. · Issued guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA) reaffirming that it protects providers when offering legally-mandated, life- or health-saving abortion services as stabilizing care for emergency medical conditions.
• Issued guidance to roughly 60,000 U.S. retail pharmacies, clarifying their obligations under federal civil rights laws.
• Issued a proposed rule that would strengthen the nondiscrimination provision of the Affordable Care Act and would again make clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.”

HHS is committed to providing accurate and up-to-date information about access to and coverage of reproductive health care and resources. Visit ReproductiveRights.gov to learn more about the care available to patients, and their right to that care.