Free Birth Control for Everyone Under the Affordable Care Act? Not so Fast…

November 15, 2012

President Obama’s re-election virtually guarantees that his health care reform law is here to stay.  Under the controversial Affordable Care Act (ACA), most new private insurance plans must provide no-cost coverage for FDA-approved contraceptives starting August 1, 2012, thereby eliminating any co-pays, co-insurance or deductibles. While this seems like a broad mandate, there are many exceptions and loopholes that significantly reduce the number of women who will actually receive “free” birth control.

First, the law only applies to private insurance plans.  According to an October 2012 publication by the Kaiser Family Foundation, only 64% of women have private insurance. Approximately 16% of women are enrolled in Medicaid or other government health insurance, such as Medicare and Tricare, which are not subject to ACA requirements. Although the federal government offers cost incentives to states that choose to eliminate co-pays for Medicaid recipients, there is no requirement that the states do so. The remaining 20% of women are uninsured and do not receive any cost savings for contraceptives.

Second, most plans that were already in effect on March 23, 2010, when the ACA was enacted, are grandfathered in, and therefore exempt from the requirement to provide free birth control. If, however, a plan loses its grandfathered status, the ACA protections would apply when the plan begins a new plan or policy year. A plan may lose its grandfathered status if it eliminates all benefits to diagnose or treat a particular condition, sharply increases the co-insurance, deductible or co-payment, significantly decreases an employer’s contribution rate towards the cost of coverage, or imposes annual limits on the dollar value of all benefits below specified amounts.

Third, plans offered by religious organizations are completely exempt. Additionally, some religiously-affiliated employers (some universities and hospitals) received a safe harbor from enforcement for one year. Moreover, some religious-minded employers filed lawsuits challenging the law as a violation of their free exercise of religion. For example, a private company in Colorado that manufactures HVAC equipment obtained a preliminary injunction after informing a federal court that its corporate culture is based on principles of the Roman Catholic Church. The injunction prohibits the government from enforcing the mandate while the case is pending.

In summary, millions of women will not experience any immediate reduction in the cost of birth control under the Affordable Care Act. Contact an Axley attorney to confirm whether your insurance plan must provide no-cost contraceptive coverage.

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For more information about "Free Birth Control for Everyone Under the Affordable Care Act? Not so Fast…," contact Kathryn M. Grigg at kgrigg@axley.com or 608.283.6703.