The law required most insurers to cover birth control with no out-of-pocket costs for women. The promise of free contraception is out of reach for many people.
There is a reason buried in the fine print. The law requires insurers to cover at least one form of each of the 18 FDA-approved birth control methods, with no copay. Insurers must provide an exception process if a patient needs a contraceptive that is not fully covered by their plan. Almost anyone with private insurance should be able to easily access any type of birth control they choose. Insurers argue that they already cover an older version of contraceptives in the same category. Patients who want or need those contraceptives are often put into lengthy, cumbersome prior authorization processes and often denied coverage or slapped with unexpected costs.
There is a standoff between two powerful industry forces which spent tens of millions of dollars last year lobbying the federal government. Drug manufacturers say insurers are discouraging innovation by not covering newer products. Insurers say that they offer enough contraceptives to comply with the law and that if the federal government doesn't take action to control drug prices, insurance plans will become too expensive. Patient advocates say regular Americans are stuck in the middle, unable to access the free contraception that the law guarantees.
Congressional Democrats are siding with them. They want the Biden Administration to give more specific guidance about the exceptions process and level penalties against insurers that don't comply.
Mara Gandal-Powers is the director of birth control access and she says that the people who are not able to get the birth control they need are either going without it or using a method that doesn't meet their needs. The point is to help people prevent pregnancies when they don't want to be pregnant.
The Department of Health and Human Services, Department of Labor, and Department of Treasury received letters from a group of Democratic House committee chairs. In January, the three agencies responded with a FAQ reminding insurers of the rules and warning them that the agencies could take further action. In February, a group of 34 Democratic Senators sent another letter urging the agencies to develop guidelines for a clear contraceptive exceptions process. More than 100 House Democrats sent a letter last month urging more enforcement action and asking the agencies to make the public aware of the requirement.
The patient advocates applaud the letter-writing and FAQ, but it's clear that women across the country are still getting charged for birth control, or having their contraception denied. Gandal-Powers says that the National Women's Law Center runs a hotline where people can get help appealing coverage denials.
In many cases, patients prefer one type of birth control over another because they have less side effects, are safer or more effective. It's important to find the contraceptive that works for you, because contraceptives are more likely to be successful at preventing pregnancies if you take them correctly and tolerate any side effects. Beth Battaglino is the CEO of patient advocacy group Healthy Women.
Millions of women may be affected by the problem, but it is not clear how widespread it is. A report from the nonpartisan Kaiser Family Foundation last year found that 21% of women with private insurance were still paying out-of-pocket costs for contraception. Reports collected by the National Women's Law Center show that in some cases, patients who could only use a specific kind of birth control for medical reasons found their plan did not cover it at no cost, and did not offer a clear exceptions process, leaving the patients to pay hundreds. Women were charged thousands of dollars for contraceptive services.
Patients are required to complete step therapy, a process in which a patient must try and fail on other drugs before an insurer will cover the requested drug, in additional patient reports shared with Time. Time reviewed a letter from a drugstore that told a patient that they had to try and fail with three different types of birth control before getting their preferred contraceptive covered. The patient would only get coverage after they tried and failed at least five contraceptive agents, according to a letter from Express Scripts reviewed by Time.
Advocates note that this is not only time consuming and unpleasant for patients, but that the stakes of an unintended pregnancy are higher now for many women around the country. The Supreme Court is expected to change the right to abortion in a case this term, and already conservative states have restricted abortion access.
As states have sought to restrict access to reproductive health care, the chair of the Senate's Health, Education, Labor, and Pensions Committee has been hyper vigilant. Murray asks if he will be able to decide when and where he will have a family. She believes that federal agencies need to take further action since they are seeing egregious behavior. That is the only way that insurers will comply with the law.
The HHS and DOL told Time that they are still looking into complaints. It could take six to 12 months for people under the Centers for Medicare and Medicaid Services.
While the federal investigations into insurers continue, advocates and pharmaceutical companies say the future of new birth control products could hang in the balance.
Insurance coverage for drugs and vaccines can lead to more investment in new products. There was a decline in the investment in new drugs in the classes that were at greatest risk of being excluded when pharmacy benefit managers began to exclude newly approved drugs for coverage around 2012 according to a working paper published in 2020.
That behavior makes economic sense, according to the paper's lead author. The profitability of the new drug is dependent on how many consumers they can expect to purchase it at.
Insurers' decision to exclude certain contraceptives puts manufacturers in a tough spot. In its fourth quarter and full year earnings call last month, Agile Therapeutics acknowledged financial struggles. Chairman and CEO Al Altomari told investors that the Biden administration's FAQ in January was a good sign and that if insurers change how they are complying with the rules that could help more Twirla prescriptions go through. I don't want to seem delusional and say that we don't. She said that the company's pharmaceutical reps have been offering to help providers fill out prior authorization forms so that they can get through the lengthy exception process if they want to prescribe the drug.
Lobbying efforts have been launched by the drug makers. Last year, Agile spent $120,000 on the topic of access to contraception, while Evofem spent $240,000 on lobbying for contraceptive services.
Health insurers say they follow the law and are not doing anything wrong in limiting which contraceptives are covered at no cost.
James Chambers, a researcher at the Center for the Evaluation of Value and Risk in Health, says that insurers have no choice but to limit what drugs are covered. If they don't behave this way, the costs would be passed on to consumers.
The U.S. spends more on health care than any other wealthy nation, and efforts to reform prescription drug prices have been stopped by Congress. Chambers says that ideally the insurance companies would always make their decisions about what to cover in ways that are evidenced based and prioritize patients. The reality is complicated.
Reducing pharmaceutical innovation is difficult to determine, researchers say. Arguments about cost can be complex. The co-chair of the Democratic Women's Caucus says contraceptives save insurers money.
Steve Lieberman is a health care policy expert at the USC-Brookings Schaeffer Initiative for Health Policy. Insurers don't know if a patient will stay on the same plan for years, so they don't have incentive to look for long-term savings or innovation in drugs. They don't care if those reimbursements are enough to encourage investors to develop the next generation of drugs.
The drug companies have better weapons than the health insurers, according to Lieberman.
While these forces play out, advocates and lawmakers say patients need access to their birth control.
You aren't going to control costs on the backs of women. You don't have the choice to pay for contraception. If we need to, we will come back with a sledgehammer. Hopefully, it won't be required.
Write to the author at abigail.abrams@time.com.
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