Update & Correction: Mandatory Coverage of Birth Control Not Insurance Commissioner’s Purview

Amie Newman

Correction: In an earlier blog post, from last week, I wrote that the new DC Insurance Commissioner may have been responsible for allowing insurance companies to make contraceptive coverage non-mandatory under certain plans. The DC Insurance Commissioner responds - though birth control coverage is still not required coverage, for insurance companies operating in the district.

Last week, I wrote about a twitter petition that was started to let Washington DC’s new Insurance Commissioner, Gennett Purcell, know that allowing private insurance companies to opt out of covering contraception under individual plans was unacceptable. 

The petition was in response to a first-hand account of one woman’s experience of going to her physician to have her birth control prescription renewed, only to find that it was no longer covered under her private insurance plan.  The question became, was it because Washingon DC’s Insurance Commissioner, Gennett Purcell, had recently revised the policy, making birth control "non-mandatory" for private insurers? Or was this always the case? In my original post, I wrote that it was a change "under Purcell’s watch" that "has somehow flown under the radar." This statement does not appear to be true and it is a statement that I’d like to correct.  

Amanda Hess noted my post and blogged about it (and has since updated her post) over at Washington City Paper writing,

D.C. ladies on the pill: You may not know the name of Gennet Purcell, the woman that Mayor Adrian Fenty appointed to head up the D.C. Department of Insurance, Securities and Banking last August. You should. Purcell may be responsible for sending your birth control costs through the roof.

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The Washington DC Department of Insurance, Securities and Banking (DISB) took notice and responded to the twitter petition and the blog posts:

The Department has no authority to force insurance companies to provide contraceptive coverage.

DISB has researched its recent consumer
complaint history and found no complaints about individual health
insurance not covering contraception. It is surveying insurance
companies writing individual health insurance in the District of
Columbia and, while responses are still coming in, has found that there
are individual plans available in DC that provide contraceptive
coverage.

In a letter to one woman’s complaint, Associate Commissioner Phiip Barlow wrote,

"Commissioner Purcell and the Department of Insurance, Securites and Banking have not taken any recent actions related to the coverage of contraceptives in individual insurance, nor did the Department take any actions prior to Commissioner Purcell’s appointment. In fact, determining what benefits are mandatory in insurance is not at the discretion of the Commissioner, but rather mandatory coverages are those that are requiree by law. Contraceptives are not now, nor have they ever been a mandatory coverage in DC."

The woman who originally brought this issue to the attention of bloggers and activists responded to Barlow and DISB, 

"…What I personally, and the bloggers who have been talking about this issue, do object to is the fact that oral contraceptives are not being covered, mandatory or otherwise. As a female business owner, it is already challenging to have to take on the additional expense of a health insurance plan, as I am not part of a group plan. But by not having oral contraception covered is [sic] an additional expense that I should have not have to be burdened with simply because my insurance company has determined it doesn’t need to offer this coverage, as it has not been mandated by the District of Columbia. It is only fair that all health insurance companies, whether they provide services to groups or to individuals, allow women the option of managing her own reproduction in a way that she and her doctor have deemed appropriate." 

The twitter petition is still live to encourage signers to show support for encouraging insurance companies operating in Washington DC to cover birth control for all women, on all plans.

In a statement to Rewire, the DISB reminded us that,

“…If you know of anyone who may have had problems with contraceptive coverage in the District of Columbia, please feel free to call the Department of Insurance, Securities and Banking (DISB) at (202) 727-8000 or visit our Web site at www.disb.dc.gov. Associate Commissioner Barlow, along with the rest of the agency’s staff, is willing to assist consumers with any financial-services-related complaints.”

News Contraception

New Hawaii Law Requires Insurers to Cover a Year’s Supply of Birth Control

Nicole Knight Shine

Insurance companies typically cover only a 30-to-90-day supply of birth control, posing a logistical hurdle for individuals who may live miles away from the nearest pharmacy, and potentially causing some using oral contraceptives to skip pills.

Private and public health insurance must cover up to a year’s supply of birth control under a new Hawaii law that advocates called the nation’s “strongest.”

The measuresigned by state Gov. David Ige (D) on Tuesday, applies to all FDA-approved contraceptive medications and devices.

Hawaii joins Washington, D.C., which also requires public and private insurers to cover up to 12 months of birth control at a time.

Oregon passed a similar measure in 2015, but that law requires patients to obtain an initial three-month supply of contraception before individuals can receive the full 12-month supply—which the Hawaii policy does not.

“At a time when politicians nationwide are chipping away at reproductive health care access, Hawaii is bucking the trend and setting a confident example of what states can do to actually improve access,” Laurie Field, Hawaii legislative director for Planned Parenthood Votes Northwest and Hawaii, said in a statement.

Insurance companies typically cover only a 30-to-90-day supply of birth control, posing a logistical hurdle for individuals who may live miles away from the nearest pharmacy, and potentially causing some using oral contraceptives to skip pills. Both the American Congress of Obstetricians and Gynecologists (ACOG) and the U.S. Centers for Disease Control and Prevention recommend supplying up to one year of oral contraceptives at a time, as the Hawaii Senate Committee on Commerce, Consumer Protection, and Health noted in a 2016 conference report.

Fifty-sex percent of pregnancies in Hawaii are unintended, compared to the national average of 45 percent, according to figures from the Guttmacher Institute.

Women who received a year’s supply of birth control were about a third less likely to experience an unplanned pregnancy and were 46 percent less likely to have an abortion, compared to those receiving a one- or three-month supply, according to a 2011 study of 84,401 California women published in Obstetrics and Gynecology.

Reproductive rights advocates had championed the legislation, which was also backed by ACOG–Hawaii Section, the Hawaii Medical Association, and the Hawaii Public Health Association, among other medical groups.

“Everyone deserves affordable and accessible birth control that works for us, regardless of income or type of insurance,” Planned Parenthood’s Field said in her statement.

Commentary Law and Policy

Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling

Bridgette Dunlap

Yes, the Zubik v. Burwell case challenged the Affordable Care Act's contraceptive coverage mandate. But that shouldn't stop you from getting your reproductive health needs met—without a co-payment.

In May, the Supreme Court issued a sort of non-decision in Zubik v. Burwell, the consolidated case challenging the Affordable Care Act’s mandate that employers provide contraceptive coverage. The ruling leaves some very important legal questions unanswered, but it is imperative that criticism of the Court for “punting” or leaving women in “limbo” not obscure the practical reality: that the vast majority of people with insurance are currently entitled to contraception without a co-payment—that includes people, for the most part, who work for religiously affiliated organizations.

Two years ago, hyperbole in response to the Court’s decision in Burwell v. Hobby Lobby—that, for example, the Court had ruled your boss can block your birth control—led too many people to believe the contraceptive coverage requirement was struck down. It wasn’t. The Zubik decision provides a good opportunity to make sure that is understood.

If people think they don’t have birth control coverage, they won’t use it. And if they don’t know what coverage is legally required, they won’t know when their plans are not in compliance with the law and overcharging them for contraceptives or other covered services, perhaps unintentionally. The point of the contraceptive coverage rule is to make it as easy as possible to access contraceptives—studies show seemingly small obstacles prevent consistent use of the most effective contraceptives. Eliminating financial barriers isn’t enough if informational ones undermine the goal.

The most important thing to know is that most health plans are currently required to cover reproductive health services without a co-payment, including:

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  • One version of every kind of FDA-approved contraception—that is, only the generic or the brand-name version of the contraceptive could be covered, but at least one must be. So you shouldn’t be paying a co-payment whether you use the pill, the patch, the shot, or want long-acting reversible contraception (LARC) like an IUD, which is more expensive, but most effective.
  • Screening for HIV and high-risk strains of HPV
  • An annual well-woman visit
  • Breastfeeding counseling and supplies like pumps

There are exceptions, but most plans should be covering these services without a co-payment. Don’t assume that because you work for Hobby Lobby or Notre Dame—or any other religiously affiliated employer—that you don’t currently have coverage.

The original contraceptive coverage rule had an “exemption” for church-type groups (on the somewhat dubious theory that such groups primarily employ individuals who would share their employers’ objection to contraception). When other kinds of organizations, which had religious affiliations but didn’t primarily employ individuals of that same religion, objected to providing contraceptive coverage, the Obama administration came up with a plan to accommodate them while still making sure women get contraceptive coverage.

This “accommodation” is a workaround that transfers the responsibility to provide contraceptive coverage from the employer to the insurance company. After the employer fills out a form noting it objects to providing contraception, the insurance company must reach out to the employee and provide separate coverage that the objecting organization doesn’t pay for or arrange.

This accommodation was originally available only to nonprofit organizations. But dozens of for-profits, like Hobby Lobby, sued under the Religious Freedom Restoration Act (RFRA)—arguing that their owners were religious people whose beliefs were also burdened by the company having to provide coverage.

The Hobby Lobby decision did not say your boss’s religious belief trumps your right to a quality health plan. What the Court did was point to the existence of the accommodation for nonprofits as proof that the government could achieve its goals of ensuring coverage of contraception through a workaround already in place to give greater protection to objectors. Basically, the Court told the government to give the for-profits the same treatment as the nonprofits.

The Hobby Lobby decision states explicitly that the effect of this on women should be “precisely zero.” The Obama administration subsequently amended the contraceptive regulations, making coverage available to employees of companies like Hobby Lobby available through the accommodation. Hobby Lobby added some headaches for administrators and patients, but it did not eliminate the contraceptive coverage rule.

Next, however, the nonprofits went on to argue to the Supreme Court and the public that the accommodation the Court had seemed to bless in Hobby Lobby also violated RFRA—because having to fill out a form, which notified the government that they objected to contraceptive coverage and identifying their insurers, would substantially burden their religious beliefs.

Following oral arguments in Zubik, the eight-member Supreme Court issued a highly unusual order: It asked the parties to respond to its proposed modification of the accommodation, in which the government would not require objecting nonprofits to self-certify that they oppose contraception nor to identify their insurers. The government would take an organization’s decision to contract for a health plan that does not cover contraception to be notice of a religious objection and go ahead with requiring the insurer to provide it instead.

The petitioners’ response to the Court’s proposed solution was “Yes, but…” They said the Court’s plan would be fine so long as the employee had to opt into the coverage, use a separate insurance card, and jump through various other hoops—defeating the goal of providing “seamless” contraceptive coverage through the accommodation.

When the Court issued its decision in Zubik, it ignored the “but.” It characterized the parties as being in agreement and sent the cases back to the lower courts to work out the compromise.

The Court told the government it could consider itself on notice of the petitioners’ objections and move forward with getting separate contraceptive coverage to the petitioners’ employees, through the accommodation process, but without the self-certification form. How the government will change the accommodation process, and whether it will satisfy the petitioners, are open questions. The case could end up back at the Supreme Court if the petitioners won’t compromise and one of the lower courts rules for them again. But for prospective patients, the main takeaway is that the Court ruled the government can move forward now with requiring petitioners’ insurers to provide the coverage that the petitioners won’t.

So—if your plan isn’t grandfathered, and you don’t work for a church or an organization that has sued the government, your insurance should be covering birth control without a co-payment. (If your plan is grandfathered and your employer makes a change to that plan, then those formerly grandfathered plans would be subject to the same contraceptive coverage requirements.) If you do work for one of the nonprofit petitioners, the government should be making contraceptive coverage available even before the litigation is resolved. And in some cases, employees of the petitioners already have coverage. Notre Dame, for example, initially accepted the accommodation before being pressured by off-campus contraception opponents to sue, so its insurer is currently providing Notre Dame students and employees coverage.

Don’t despair about the Supreme Court’s gutting access to contraception. Assume that you have coverage. The National Women’s Law Center has great resources here for finding out if your plan is required to cover contraception and how to address it with your insurance plan if it isn’t in compliance, and a hotline to call if you need help. The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.