- The Washington Times - Monday, May 11, 2015

The Obama administration on Monday ordered all insurers to provide IUDs, the contraceptive patch and other birth control free of out-of-pocket charge to all women, thereby rewriting the rules after reports that some insurance carriers were refusing to cover all types of contraceptives.

Insurers must now cover at least one brand of contraception in each of 18 different methods outlined by the Food and Drug Administration, such as one type of oral contraceptive pill, one version of the emergency contraceptive morning-after pill and, notably, the vaginal ring, which some women could not get before without paying out of pocket.

In New York, Attorney General Eric T. Schneiderman called for his state to go even farther, proposing legislation that would force insurance companies to pay for men’s sterilization procedures.

At the federal level, the Health and Human Services Department said it was trying to clear things up after women and members of Congress complained that some insurers were refusing to cover the specific contraceptives women’s doctors were recommending.

Insurers can in some cases still impose costs to prod women to use generics rather than brand-name drugs under the new guidance — but if a doctor or hospital recommends a particular drug or contraceptive device out of medical necessity, the plans must cover them without additional cost.

“Today’s announcement is an important step toward making it clear that all insurance companies should follow the rules and provide women with the health care they are entitled to,” said Sen. Patty Murray, Washington Democrat, who led dozens of party colleagues this month in urging HHS to ensure compliance.

Insurers too had sought more specifics about what was required under the Affordable Care Act and its contraceptive coverage provisions, which have been among the most controversial parts of the law.

They were supposed to give women free access to birth control, but some insurers were refusing to fully cover all types of contraceptives, meaning women who wanted a particular form of birth control had to pay some or all of the costs, the nonpartisan Kaiser Family Foundation and other groups said in recent studies.
Those groups said the new rules were a victory.

“Insurance companies have been breaking the law and, today, the Obama administration underscored that it will not tolerate these violations,” the National Women’s Law Center said. “It is now absolutely clear that all means all — all unique birth control methods for women must be covered.”

Pro-choice groups and others had said insurers were using so-called “medical management” to either skirt the rules or plead ignorance.

For example, an inquiry by the New York attorney general found one plan told a patient she couldn’t get the NuvaRing — for which there is no generic on the market — without cost-sharing because she could use birth control pills with the same chemical formulation.

Holly Lynch, a bioethics experts at Harvard Law School who closely tracks Obamacare’s contraception rules, said that was exactly the type of problem that HHS wanted to erase.

“Just because a pill would be available for free doesn’t mean that an insurer could refuse to make the ring available for free,” she said.

The contraceptive mandate has been controversial from the start, though most of the attention has gone to the marathon court battle between the administration and employers who have religious objections to contraceptives, and who say forcing them to pay for employees’ coverage violates their own rights.

The Supreme Court last year ruled closely held corporations do not have to insure types of birth control that violate their moral beliefs, and the Obama administration is expected to update its rules soon.

Religious nonprofits, meanwhile, are still pursuing their cases through the courts, arguing that the “accommodation” the administration designed for them still leaves them complicit in contraceptive coverage.

HHS’s new guidance, however, looked at the mandate from the perspective of female consumers.

America’s Health Insurance Plans, the industry’s top lobbying group, welcomed Monday’s clarification.

“Today’s guidance takes important steps to support health plans’ use of medical management in providing women with safe, affordable health care services,” AHIP President and CEO Karen Ignagni said. “Health plans are committed to promoting evidenced-based decision-making and to ensuring all consumers understand how their coverage works.”

Under the new rules, insurers must be willing to waive cost sharing if a doctor says a particular drug — brand-name or generic — is medically necessary, although such considerations are limited to serious considerations such as the severity of side effects.

“If a patient simply prefers brand over generic, that wouldn’t fit the bill,” Ms. Lynch said.

The contraception rules were released as part of broader guidance on women’s health services, including insisting on free screenings for women susceptible to certain types of cancer. Also, insurers cannot charge extra for anesthesia services provided with preventive colonoscopies.

HHS said the rewrite would apply to future plan years, saying insurers could have argued they were using “good faith” in more narrowly interpreting the current rules.

Meanwhile, New York’s top lawman tried to tackle the issue on his own, proposing legislation that would write Obamacare’s coverage requirement into state law while piling on extra consumer protections — even to men.

Mr. Schneiderman said his bill would force every state-regulated health policy to cover all methods of FDA-approved contraceptives at no cost, akin to federal guidance, although consumers could also get a year’s worth of contraception at a time.

He also said men’s sterilization procedures should be covered without cost sharing.

“New Yorkers should not be penalized by their insurance companies for using the birth control method that they and their medical provider agree is most appropriate for them,” Mr. Schneiderman said.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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