On October 21, 2024, the federal executive branch, the U.S. Department of Health and Human Services (“HHS”), the Department of Labor (“DOL”) and the Treasury Department (“Treasury”) released a proposed rule to expand access to contraception, including covering 100% of the costs for over-the-counter birth control and condoms for men and women of reproductive age that have private health insurance.
Employer Action Items
- Employers and plan sponsors should update their plan documents if/when this proposal is accepted and becomes a final rule.
- Employers and plan sponsors should contact their benefits professional to become familiar with how OTC products are reimbursed.
Summary
The tri-agency proposal would require most private health insurance coverage to cover all recommended over-the-counter (“OTC”) contraception products, such as condoms, spermicide and emergency contraception at no cost, according to senior administration officials. The proposal would also require private health insurance issuers to notify eligible recipients about the coverage of these OTC products.
Xavier Becerra, the Secretary of HHS, has stated that when health care insurers create administrative barriers or attach cost sharing for these products, “access to contraceptives become even more difficult.” Additionally, Becerra stated, “…[w]e have heard from women who need a specific brand of birth control, but the cost of their prescription isn’t covered by their health insurance. We have made clear that in all 50 states the Affordable Care Act guarantees coverage of women’s preventive services without cost sharing, including all birth control methods approved by the Food and Drug Administration.”
These products should be accessed the same way prescription medicines are accessed, such as at the pharmacy counter, according to senior administration officials. Obtaining the products through reimbursement would also be an option, depending on the health insurance plan, officials said.
A daily oral birth control pill for women, Opill, was approved by the Food and Drug Administration (“FDA”) in July 2023 and became the first over-the-counter birth control pill widely available. It has been available for purchase online since March 2024, and the price is around $19.99. HHS’ proposal is aimed to strengthen access to contraceptives.
A comment period on the proposed rule is presently open. These changes are proposed to be applicable for plan years beginning on or after January 1, 2026, if they are finalized. If approved, the Final Rule would likely be effective early in 2025.
Additional Resources
- HHS site with instructions to make a public comment – https://www.hhs.gov/about/news/2023/09/29/hhs-requests-public-input-coverage-over-the-counter-preventive-services-including-contraception-tobacco-cessation-breastfeeding-supplies.html
- FDA Approval on Opill – https://www.fda.gov/news-events/press-announcements/fda-approves-first-nonprescription-daily-oral-contraceptive
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