Why Your Insurance Doesn’t Want to Cover Your Birth Control

WMany women were happy to hear that the Affordable Care Act was passed 10 years ago. It required all insurance companies to cover birth control with zero out-of pocket costs. But, a decade on, many still cannot access the promise of contraception free of cost.

You will find the reason in the small print. The law requires insurers to cover, with no copay, at least one form of each of the 18 Food and Drug Administration-approved birth control methods, such as pills, intrauterine devices (IUDs), patches, and rings. A contraceptive may be necessary if there is a medical reason. It is not fully covered by their plan, insurers must provide an “expedient exceptions process” that allows the patient to get that contraceptive covered. Private insurance covers almost everyone. They should allow them to access any type of contraceptive they choose. In reality, however, many insurers refuse to cover newer contraceptives because they do not cover older versions. Advocates claim that patients who need or want these uncovered contraceptives face lengthy and cumbersome authorization procedures. They are often denied coverage, or hit with unanticipated costs.

At the heart of the issue is a standoff between two extraordinarily powerful industry forces—Big Pharma vs. Big Insurance—which collectively spent tens of millions of dollars last year lobbying the federal government over this and a multitude of other issues. Insurers refuse to cover the newer products of drug manufacturers, they are preventing innovation. Insurers, for their part, say that they offer enough varieties of contraception to fully comply with the ACA—and that without coverage limits or federal action to control drug prices, insurance plans would become unaffordable. Advocates for patients claim regular Americans remain stuck between the lines, not being able to get the free contraception the law promises.

The Congressional Democrats are taking a stand. They are pushing the Biden Administration to issue more specific guidance about the exceptions process and level penalties against insurers that don’t comply—especially as reproductive health care in the U.S. could soon change if the Supreme Court dismantles the national right to abortion this spring.

“The folks that are not able to get the birth control they need are potentially either going without it or going with a method that doesn’t meet their needs,” says Mara Gandal-Powers, director of birth control access and senior counsel for reproductive rights and health at the National Women’s Law Center. “And that is just not the point of this part of the law. The point is … to help people prevent pregnancy when they don’t want to be getting pregnant.”

Contraception is difficult for patients

A group of Democratic House Committee Chairs and Senators Patty Murray and Ron Wyden wrote letters last fall to the Department of Health and Human Services, Department of Labor and Department of Treasury. In January, the three agencies responded with a FAQ reminding insurers of the ACA’s rules, and warning them that the agencies were “actively investigating” complaints and may take further enforcement action. In February, 34 Democratic Senators wrote another letter asking the agencies for guidelines to create clear contraceptive exceptions processes. Another group of over 100 House Democrats wrote a letter last month, urging the agencies to take further enforcement actions and reminding the public about the ACA.

Patient advocates say that while they applaud the prolific letter-writing and the agencies’ FAQ, it’s not enough: it’s clear that women across the country are still getting charged for birth control, or having their contraception outright denied. The National Women’s Law Center runs a hotline where people can get help appealing coverage denials, and it is still seeing reports roll in, Gandal-Powers says.

Many patients choose one method of birth control because it has fewer side effect, is safer, or better, advocates claim. Unintended pregnancies account for approximately 45% in the United States. Providers note that contraceptives can be more effective at stopping pregnancy than if they are taken correctly and tolerate side effects. “It is really important to find the contraception that meets your needs. Otherwise you’re not going to take it,” says Beth Battaglino, a maternal–fetal medicine nurse and CEO of patient advocacy group HealthyWomen.

It’s not clear how widespread the problem is, although millions of women may be affected. The Kaiser Family Foundation, a nonpartisan organization, reported last year that 21% (of women who have private insurance) were paying out-of-pocket contraceptive costs. Researchers also believe that these violations could impact patients. 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 or thousands of dollars out of pocket. Women were also complaining that they were charged thousands of dollar for the services required to implement their contraception.

Additional patient reports separately shared with TIME showed pharmacy benefit managers requiring patients to complete what’s called step therapy, a process in which a patient must try and fail on other drugs before an insurer will cover the requested drug. TIME reviewed one letter from CVS Caremark that stated to a patient that they had to try three different types of contraceptives before their chosen one was covered. TIME reviewed another letter sent by Express Scripts, which stated that the patient would be covered only if they have tried at least five contraceptive methods.

Advocates point out that it is time-consuming and uncomfortable for patients. However, the risks of unintended pregnancies are much higher for many women in the United States. The Supreme Court is expected to reshape the right to abortion in a case this term, and already conservative states have curtailed abortion access ahead of the Court’s decision.

Murray, the chair of the Senate’s Health, Education, Labor, and Pensions Committee, says she’s been “hyper vigilant” as states have sought to restrict access to reproductive health care. “This is frightening that in 2022, women in this country have to say, ‘Am I going to be able to get the birth control I need? Am I going to be able to decide when and where and how I’m going to have a family?’” Murray tells TIME. She added that insurers should have been complying with the ACA “from day one,” and she hopes that federal agencies will take further action soon. “I really believe since we are seeing such egregious behavior they need to take the next step, put out comprehensive guidance and then have robust enforcement. That’s the only way that insurers will comply with this law.”

Both HHS (and DOL) told TIME that they continue to investigate complaints. According to an agency spokesperson, it could take between six and 12 months to investigate complaints under the Centers for Medicare & Medicaid Services (CMS). “CMS takes complaints regarding contraceptive coverage seriously and is committed to robust enforcement to ensure that insurers and plans comply with the law,” the spokesperson said.

Is it harmful to innovation to limit coverage?

While the federal investigations into insurers’ decisions continue, advocates and pharmaceutical companies say the future of new birth control products could hang in the balance. “I am concerned that if we don’t see these new products get coverage that’s going to impact how companies think about contraceptive technologies and development over the next decade or 15 years,” Gandal-Powers says.

Research has found that increased insurance coverage can result in greater investment in vaccines and drugs. NBER published a working paper in 2020 that showed a similar result: When pharmacy benefit managers (insurers who manage prescription drug coverage) began to exclude newly approved drugs from coverage in 2012, investment in new drugs fell in those classes.

According to Leila Akha, assistant professor of economics at Dartmouth College, and co-author of the paper, this behavior makes economic sense. “The amount of investment in research and development for new pharmaceutical drugs seems to depend on how profitable those drugs are expected to be. And the profitability of the new drug is going to in turn depend on how many consumers they can expect to purchase it at what price,” she says. “So if you make a drug more expensive by moving it up to a less favorable or less generous tier of your prescription drug plan, or if you exclude it from your prescription drug coverage altogether, it’s reasonable to expect that that drug would then have lower sales, and an expectation of that might affect innovation.”

Insurers’ decision to exclude certain contraceptives puts those manufacturers in a tough spot. Agile Therapeutics which produces Twirla (a new low-dose contraceptive tablet), admitted its financial problems last month during the company’s fourth quarter earnings call. 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 ACA rules that could help more Twirla prescriptions go through. Evofem Biosciences made Phexxi (a non-hormonal contraceptive) and shared similar messages on their call. “I don’t want to seem delusional and say, ‘Oh, we don’t think it’s a huge issue.’ But our leadership of our sales team was at our corporate office this week, and we had a very serious come to Jesus about how difficult this is,” CEO Saundra Pelletier said during her call in March. She added that while they hope the situation will improve next year, the company’s pharmaceutical reps have been offering to help providers fill out insurers’ prior authorization forms so that they can get through the lengthy exception process if they do want to prescribe Phexxi.

Lobbying has been launched by drug manufacturers, as well. Evofem spent $240,000 lobbying on “federal health policies pertaining to coverage for contraceptive services” and “access to contraception” last year, while Agile spent $120,000 on the topic and TherapeuticsMD which makes Annovera, a newer vaginal ring, spent $80,000.

Health insurance companies try to reduce health care costs

The health insurance companies claim they are following the law. They also say that it is not illegal to limit which contraceptives will be covered. “Plans cover at least one option without cost sharing—and often much more—in each of the 18 FDA designated categories,” said Kristine Grow, a spokeswoman for America’s Health Insurance Plans (AHIP). “Coverage with some cost sharing, is not the same as not covered – your coverage is still saving you money.” Grow added that it can take time for new contraceptives to be covered because formularies are typically developed several months before each benefit year.

James Chambers, who is an analyst at the Center for the Evaluation of Value and Risk in Health (Tufts Medical Center), says that insurance companies have no other choice than to restrict the drug coverage. If they don’t, costs would be unmanageable—and those costs would be passed down to consumers. “Health plans have to behave in this way in some regard, because if it was simply a free market, the health system would just explode in terms of the cost of these therapies,” he says.

American spends more money on healthcare than any other country, but efforts to reduce prescription drug costs have been blocked by Congress. Chambers studied the variation in insurance coverage for specialty drugs and concluded that it would be ideal if insurers made their decision about who to cover, and how they prioritized patients. The reality is more complicated.

It’s difficult to determine the actual impact of reducing pharmaceutical innovation, researchers say. Even arguments over cost are complex. Rep. Jackie Speier, co-chair of the Democratic Women’s Caucus, tells TIME that “contraception saves the insurers money.” “When you have contraception, you don’t get pregnant unintentionally, and you don’t have the costs associated with prenatal care and maternity care,” Speier says. “So it’s to their advantage to make sure that women have access to contraception.”

According to Steve Lieberman (USC-Brookings Schaeffer Initiative for Health Policy), insurance companies often focus on the immediate cost. Insurers have no guarantee a patient is going to stay on the same plan for years, so there’s little incentive for them to consider long-term savings or innovation in drugs that might help lower costs down the line. “Health plans’ interest is lowering the costs as much as they can for medically necessary drugs. And it’s not their concern whether those reimbursements are sufficient to incentivize investors to develop the next generation of drugs,” he says.

Lieberman notes, too that manufacturers who are truly unique and stand out from the rest of the competition can charge high prices. Insurers will often cover them. “The drug companies have better weapons than the health insurers,” he says.

Advocates and legislators say there are still patients who need to access their birth control, even as these forces continue.

“You’re not going to control costs on the backs of women,” Speier says. “You’re going to comply with the law. You don’t have the choice to require a copay for women accessing contraception. So either fix it, or we’ll come back with a sledgehammer if we need to. Hopefully, it won’t be required.”

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