WASHINGTON – Today, the Democratic Women’s Caucus (DWC) sent a letter pushing the Biden Administration to do more to ensure that insurers follow the law and comply with the Affordable Care Act’s (ACA) contraception coverage requirements that guarantee women can get FDA-approved birth control products without out-of-pocket costs and any over-the-counter birth control product without a prescription. Congresswoman Nikema Williams (GA-05) is co-chair of the DWC.

In the letter to President Biden, the lawmakers highlighted “systemic noncompliance” of the ACA contraception coverage requirements. The lawmakers pointed to a recent Oversight Committee report, issued by the Democratic majority last Congress, which showed systemic practices resulting in women facing “unlawful barriers” in getting coverage for the birth control that works best for them—all despite current guidance from the Biden Administration.

The letter reads in part:

“These barriers include delays, rejections, imposition of cost-sharing, lack of an exceptions process that complies with federal rules, and lack of transparency. People are not only being denied coverage without cost-sharing of prescription contraceptives, but also are unable to receive the type of IUD recommended by their provider. According to the COR report, at least 34 contraceptive products, many of them newly introduced, face exclusions or cost-sharing. After eight years, it is clear that payers will not comply with current guidance.”

To ensure that insurers follow the law—and women get the birth control they need—the lawmakers urged the Biden Administration to adopt the recommendations of the Oversight Committee report. Specifically, they urged the Administration to explicitly require health plans to cover, without cost-sharing, every FDA-approved contraceptive product. They also urged the Administration to clarify that health plans must cover over-the-counter contraceptives without prescriptions and without out-of-pocket costs.  

The letter continues:

“People continue to face hurdles in obtaining contraception due to health plan non-compliance. We are pleased the Departments have acknowledged this issue. We write to request two specific actions to overcome barriers to the contraceptive coverage under the Affordable Care Act (ACA): requiring coverage for all contraceptive products without a therapeutic equivalent on plan formularies and prohibiting prescription requirements for over-the-counter (OTC) contraceptive products.”

In addition to Democratic Women’s Caucus Chair Frankel, the letter was signed by: Representatives Colin Allred, Becca Balint, Nanette Barragán, Suzane Bonamici, Jamaal Bowman, Julia Brownley, Nikki Budzinski, Cori Bush, Yadira Caraveo, Tony Cárdenas, André Carson, Troy Carter, Matt Cartwright, Greg Casar, Sean Casten, Kathy Castor, Sheila Cherfilus-McCormick, Judy Chu, Yvette Clarke, Emanuel Cleaver, Steve Cohen, Gerald Connolly, Angie Craig, Jasmine Crockett, Jason Crow, Danny Davis, Diana DeGette, Rosa DeLauro, Suzan DelBene, Adriano Espaillat, Dwight Evans, Lizzie Fletcher, Bill Foster, Chuy García, Sylvia Garcia, Jimmy Gomez, Josh Gottheimer, Raúl Grijalva, Jim Himes, Val Hoyle, Sheila Jackson Lee, Sara Jacobs, Sydney Kamlager-Dove, Robin Kelly, Ro Khanna, Annie Kuster, Barbara Lee, Teresa Leger Fernandez, Stephen Lynch, Kathy Manning, Doris Matsui, Jennifer McClellan, Morgan McGarvey, Gwen Moore, Joseph Morelle, Jerry Nadler, Eleanor Holmes Norton, Ilhan Omar, Donald Payne, Scott Peters, Brittany Pettersen, Chellie Pingree, Stacey Plaskett, Mark Pocan, Katie Porter, Delia Ramirez, Jamie Raskin, Dutch Ruppersberger, Linda Sánchez, John Sarbanes, Mary Gay Scanlon, Jan Schakowsky, Kim Schrier, Terri Sewell, Haley Stevens, Mark Takano, Dina Titus, Rashida Tlaib, Jill Tokuda, Paul Tonko, Lori Trahan, Lauren Underwood, Marc Veasey, Nydia Velázquez, Debbie Wasserman Schultz, Maxine Waters, Bonnie Watson Coleman, Susan Wild, and Frederica Wilson.

Read the full below:

March 27, 2023

President Joseph R. Biden, Jr.

The White House

1600 Pennsylvania Avenue, N.W.

Washington, DC 20500

Dear President Biden:

We write to you today in regards to the Affordable Care Act’s contraceptive coverage requirement. People continue to face hurdles in obtaining contraception due to health plan non-compliance. We are pleased the Departments have acknowledged this issue in the preamble to the February 2, 2023 proposed rulemaking on the contraceptive coverage requirement. We write to request two specific actions to overcome barriers to the contraceptive coverage under the Affordable Care Act (ACA): requiring coverage for all contraceptive products without a therapeutic equivalent on plan formularies and prohibiting prescription requirements for over-the-counter (OTC) contraceptive products.

Despite repeatedly updated Frequently Asked Questions (FAQ) guidance and enforcement from the tri-agencies to address systemic noncompliance by payers, people continue to face unlawful barriers to getting coverage for certain contraceptive products. These barriers include delays, rejections, imposition of cost-sharing, lack of an exceptions process that complies with federal rules, and lack of transparency. People are not only being denied coverage without cost-sharing of prescription contraceptives, but also are unable to receive the type of IUD recommended by their provider. According to the COR report, at least 34 contraceptive products, many of them newly introduced, face exclusions or cost-sharing. The report also reveals that most of the insurers and pharmacy benefit managers reported denying an average of at least 40% of exception requests for contraceptive products from 2015 to 2021. These systemic practices violate guidance initially issued in 2015 and reinforced by the tri-agencies on three separate occasions. After eight years, it is clear that payers will not comply with current guidance. The tri-agencies must issue new guidance based on the most recent HRSA guidelines in order to ensure that patients have access to the contraception that is right for them at no cost-sharing, as the ACA requires and the Departments reiterated in the preamble to the proposed rule.

We request that the tri-agencies adopt the recommendations of the House Committee on Oversight and Reform’s (COR) 2022 report to require health plans to cover, without cost-sharing, every contraceptive product that has been approved, granted, or cleared by the Food and Drug Administration (FDA), unless there is a covered therapeutic equivalent, as defined by the Food and Drug Administration (FDA) Orange Book, which identifies drug products approved by the FDA. This recommendation mirrors the most recent Women’s Preventive Services Guidelines released by the Health Resources and Services Administration (HRSA) in December 2022.

Tens of millions of U.S. residents who have otherwise comprehensive health insurance coverage for contraceptive care have faced a cost barrier for OTC contraceptives, including condoms and emergency contraception, because health insurance plans typically require enrollees to obtain a prescription, even for contraceptives that are sold OTC. We expect this barrier to become even more significant in the near future, with the historic advancement of two applications before the FDA to make oral contraceptive products available without a prescription for the first time ever in the U.S.

Health plans have justified the prescription requirement by citing outdated federal FAQs. These FAQs are not consistent with the current contraceptive coverage requirement, including the most recent updates adopted in December 2021 by HRSA. Therefore, the tri-agencies should issue new guidance that explicitly states health plans’ obligation to cover OTC contraceptive products without cost-sharing and without a prescription.

We request that the tri-agencies issue guidance clarifying that health plans must cover OTC contraceptive products without a prescription and without out-of-pocket costs. Furthermore, the benefits of mail-order pharmacies throughout the pandemic have proven them indispensable as a compliment to traditional brick and mortar pharmacies; the Departments should ensure that moving forward both OTC and prescription contraceptives are covered without cost-sharing at both types of retailers.

Thank you again for your dedication to expanding contraceptive access for all Americans, and we look forward to working with you to ensure all patients can access the products they need. If we can be of further assistance, please contact the Policy Director of the Democratic Women’s Caucus, Julia Bartusek at Julia.Bartusek@mail.house.gov or (202) 439-7666.

Sincerely,

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