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Departments Release New Round of ACA FAQs on Birth Control Coverage

In response to President Biden’s Executive Order intended to protect access to reproductive health care services, the Department of Health and Human Services, the Department of Labor and the Department of the Treasury (the Departments) issued additional ACA FAQs (Part 54) focused on birth control coverage.

Under the Affordable Care Act (ACA), non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage must provide certain preventive services without imposing any cost-sharing. These new FAQs clarify coverage of women’s preventative services, including birth control and family planning counseling. The guidance defines that applicable plans and insurers are required to cover, without cost sharing, the full range of female-controlled FDA-approved contraceptive care.

In addition, plans and issuers are also required to cover items and services integral to preventative service, such as necessary anesthesia for tubal ligation (FAQ 1) and contraceptive products and services not included in the recently updated HRSA-Supported Guidelines (FAQs 2-5).

FAQ 6 provides that a health savings account (HSA), health flexible spending account (FSA), or health reimbursement arrangement (HRA) may reimburse incurred costs for over-the-counter contraception so long as it is not paid or reimbursed by another plan or coverage.

This guidance comes on the heels after the Departments issued a joint letter warning plan sponsors and health carriers they “may take enforcement or other corrective actions as appropriate” against health plans that are not complying with the contraceptive coverage mandate.

The recent Supreme Court decision Dobbs v. Jackson has caused many employers to wonder if their health plan would violate the laws of some states if they continue to cover certain contraception, specifically emergency contraception like Plan B. According to FAQ 11, federal law preempts any state law that would attempt to disqualify the Public Health Service Act requirement that mandates contraception coverage. At this point, this is considered the opinion of the Departments and there is a strong chance some states will challenge this stance in court.

Through the new FAQs and the released joint letter, the Departments have made it clear this will be an enforcement priority. Employers are encouraged to continually monitor new updates to both state and federal law and regularly meet with trusted advisors to ensure they are complying with an ever-changing legal landscape.

If you have questions about this proposed regulation, contact your OneDigital consultant. For the latest compliance and regulatory updates register for: Need-to-Know Quarterly Compliance Recap for Employers.